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2012 DIGILAW 1271 (MP)

Shakuntalabai v. Chatur Singh

2012-12-07

SUJOY PAUL

body2012
ORDER 1. In this petition filed under Article 226 of the Costitution, the case of the petitioner is as under:- The petitioner is the owner of land along with other family members. The land is in survey No. 697/02 min area 10.141 hectare. A power of attorney was executed by the petitioner in favour of Hemsingh, whereby he was authorised to look after the land but no authority for alienating the land was given to him. This power of attorney was also subsequently cancelled. Hemsingh alienated the land in the name of his own son and some other persons. The son of Hemsingh i.e. Balveer Singh (respondent No. 3) and other persons got their names mutated in the revenue record. No information is given to the petitioner in the mutation proceedings before recording the names of respondents in the revenue record. The petitioner feeling aggrieved with the said action of the Tahsildar preferred an appeal before the Sub-Divisional Officer (SDO) bearing appeal No. 99/05. The appeal aforesaid was filed by all the owners of the land and the SDO after hearing the parties by order dated 24.5.2006 allowed the appeal and set aside mutation made in favour of respondents No. 1 to 4. The matter was remitted back for affording opportunity of hearing to the parties and enquiry was directed to be conducted. Against the SDO’s order dated 24.5.2006 (Annexure P-4), a revision was filed by respondent No. 1 Chatur Singh. The other respondents did not file any revision. The Additional Collector by order dated 30.8.2007 dismissed the revision with a direction to the Tahsildar to afford opportunity to the parties and pass a fresh and reasoned order. Against the order of Additional Collector a revision was filed by respondent No. 1. This revision was allowed and orders of SDO and Additional Collector were set aside. The petitioner preferred a revision against this order of Additional Commissioner before the Board of Revenue. The Board of Revenue by impugned order Annexure P-1 dated 5.7.2012 dismissed the revision of petitioner. This petition is filed against the order Annexure P-1 and P-2, whereby the revision of respondent No. 1 was allowed by Additional Commissionar and the revision of the petitioner is rejected by the Board Revenue. 2. The Board of Revenue by impugned order Annexure P-1 dated 5.7.2012 dismissed the revision of petitioner. This petition is filed against the order Annexure P-1 and P-2, whereby the revision of respondent No. 1 was allowed by Additional Commissionar and the revision of the petitioner is rejected by the Board Revenue. 2. Shri N.K. Gupta, learned counsel for the petitioner, submits that as per section 110 of Madhya Pradesh Land Revenue Code, 1959, it was obligatory on the part of Tahsildar to issue notices to all persons who may be interested in the matter. He submits that as per rules made under Code also, the advertisement and notices are required to be issued/published in a particular manner. The petitioner was a necessary party and was very much interested being the owner of the land but was not heard by the Tahsildar, which vitiates the entire proceedings. By placing heavy reliance on Page 8 of the rejoinder, it is stated that the document makes it crystal clear that in the record of the Tahsildar only one document i.e. advertisement is enclosed and no other document finds place, which shows that no notices have been issued by the person interested. He further submits that no material is available to show that advertisement was fixed in the places it is required to be fixed as per the provisios of MPLRC and rules made thereunder. By relying on various documents he submits that power of attorney is given to Hemsingh for a limited purpose and no right was given to him to sell the property. 3. Per Contra, Shri K.S. Tomar, learned senior counsel for respondent No. 1 and Shri V.K. Bhardwaj, learned senior counsel for respondent No. 3 and 4, supported the orders Annexure P-1 and P-2. Learned senior counsel appearing for the respondents submit that as per section 111 MPLRC, the remedy for the petitioner is to file a civil suit. The petitioner has already chosen to file a civil suit and accordingly, no case is made out for interference by this Court. They relied on sections 115 and 116 of the MPLRC and judgments of Supreme Court reported in (2008) 4 SCC 451 [B.K. Muniraju vs. State of Karnataka and others] and ( 2010 RN 1 =(2009) 5 MPHT 282 [Sakhi Gopal Dixit Vs. Board of Revenue and another]. 4. Shri Newaskar, learned Dy. They relied on sections 115 and 116 of the MPLRC and judgments of Supreme Court reported in (2008) 4 SCC 451 [B.K. Muniraju vs. State of Karnataka and others] and ( 2010 RN 1 =(2009) 5 MPHT 282 [Sakhi Gopal Dixit Vs. Board of Revenue and another]. 4. Shri Newaskar, learned Dy. Government Counsel produced the relevant record of Tahsildar as per the earlier direction of this Court. 5. I have heard the learned counsel for the parties and perused the record. 6. The case of the petitioner is that he gave power of attorney for a limited purpose to Hemsingh and that power of attorney did not give authority to Hemsingh to sell the property. Hemsingh without any authority of law had sold the property and alienated the same. The power of attorney was also cancelled and, therefore, it was obligatory on the part of Tahsildar to hear the petitioner in the mutation proceedings. The main emphasis of Shri N.K. Gupta is for following “due process” which is allegedly violated by the Tahsiladar. 7. Per Contra, Shri K.S. Tomar and Shri V.K. Bhardwaj, learned senior counsel submitted that proper remedy for the petitioner is to file a civil suit. Before dealing with these aspects, it is apt to quote the relevant provisions in this regard. Section 110(3) of MPLRC reads as under:- “110. Mutation of acquisition of right in Field Book and other relevant land records.- (1) xxx xxx xxx (2) xxx xxx xxx (3) On receipt of the intimation from patwari under sub-section (2), the Tahsildar shall have it published in the village in the prescribed manner and shall also give written intimation thereof to all persons appearing to him to be interested in the mutation and also to such other person and authorities as may be prescribed.” A bare perusal of this section shows that the Tahsildar is under a legal obligation to publish the advertisement in the prescribed manner in the village and is also required to give written intimation of the same to all persons who are interested in the mutation. Note 27 made under section 110 aforesaid reads as under.- “27. Note 27 made under section 110 aforesaid reads as under.- “27. On receipt of the intimations from the Patwaris, or from the Registering Officers under section 112, the Tahsildar shall have the intimations duly published by beat of drum in the village to which they relate and shall get a copy of the intimation posted at the chaupal, gudi or any other place of public resort in the village and shall also sent a copy thereof to the Gram Panchayat of the village. He shall also give written intimation of the same to all persons appearing to him to be interested in the same to all persons appearing to him to be interested in the mutaion.” Rule 28 and 32 also reads as under.- “28 On a date and place to be specified in the intimation the Tahsildar shall hear the parties concerned and certify the mutation entry, provided that, where a party remains absent after having been duly served with a notice, the entry will be certified ex parte. 32. Disputes shall be decided summarily by the Tahsildar on the basis of title and not possession. Any transfer by a person whose name is not recorded in the Khasra shall not be admitted in mutation by the Tahsildar. The order shall contain the names of the parties and witnesses and a brief summary of the evidence produced by either side together with the Tahsildar findings thereon.” A conjoint reading of section 110(3) and aforesaid rules will make it clear that the Tahsildar is required to act in a particular manner. He is required to publish an advertisement, beat of drum is to be used for the purpose of said publication in the concern village, copy of intimation is required to be posted at chaupal, gudi and other place of public resort in the village and copy of the same is required to be sent to Gram Panchayat of the village. In addition thereto, the Tahsildar is required to give written intimation of the publication to all persons who may be interested in mutation. Thereafter, by fixing a date in the intimation, the Tahsildar is obliged to hear the parties concerned and then certify the mutation. 8. The twin questions at this stage emerge for consideration are:- (i) Whether the present petitioners can be treated as interested person and whether they were required to be noticed. Thereafter, by fixing a date in the intimation, the Tahsildar is obliged to hear the parties concerned and then certify the mutation. 8. The twin questions at this stage emerge for consideration are:- (i) Whether the present petitioners can be treated as interested person and whether they were required to be noticed. (ii) Whether, the Tahsildar has followed the aforesaid procedure. 9. The mutation was claimed on the strength of a sale deed which was executed on the basis of power of attorney. The petitioners were original owners of the land, therefore, in the opinion of this Court, they should have been treated as person interested by the Tahsildar. It was obligatory on the part of the Tahsildar to issue notice to the petitioners as well. The language used section 110(3) and Note 27 aforesaid which employed the words “all person appearing to him to be interested” does not mean that there is any unfettered and uncontrolled discretion on the Tahsildar to notice any person as per his whims and fancies. This power is to be exercised diligently and all such persons who may be interested should be noticed. In my opinion, the petitioners should have been noticed being the original owner of the property. This first question is answered in favour of the petitioners. 10. The second question is about the decision making process adopted by the Tahsildar. The original record is also produced for the perusal of this Court. The original record does not contain any indication as to where the advertisement was affixed. There is no mention that it was affixed in chaupal, gudi and other relevant places where it was required to be affixed. It is also not clear as to when this advertisement was actually affixed. The record also does not contain any indication that any notice were issued to the interested person including the petitioners. This is one of the reasons on which the SDO interfered in appeal and gave his finding that the appellants/present petitioners were not noticed. The date of notice and advertisement and the place where it was allegedly affixed etc. is not clear. The said findings of the SDO were not disturbed by the Commissioner or by the Board of Revenue. 11. In the considered opinion of this Court, the finding of the SDO to the extent indicated above is in accordance with law. The date of notice and advertisement and the place where it was allegedly affixed etc. is not clear. The said findings of the SDO were not disturbed by the Commissioner or by the Board of Revenue. 11. In the considered opinion of this Court, the finding of the SDO to the extent indicated above is in accordance with law. The main thrust of the argument of learned senior counsel for the respondents is that the proper remedy of the petitioners is to file a civil suit. Heavy reliance is placed on sections 111, 115 and 116 of MPLRC in this regard. By placing reliance on the judgment of Sakhi Gopal Dixit (supra), it is argued by Shri Bhardwaj that the proper remedy for the petitioner is to file a civil suit and in fact on a later stage, petitioner has already filed a civil suit. In such circumstances, this petition is not tenable and the Board of Revenue and the Commissioner have not committed any error of law. 12. Section 111 of the Code deals with the jurisdiction of the Civil Courts to decide any dispute in which State Government is not a party and it is relating to any right which is recorded in the record-of-rights. Section 115 deals with power of Tahsildar to correct the entry, if it is found to be incorrect and made by an officer subordinate to him. 13. In the considered opinion of this Court, it cannot be disputed as per the scheme of MPLRC that a mutation order can be challenged by filing an appeal under the provisions of MPLRC. This is settled in law that it is the choice of the litigant to decide the forum, when more than one forums are available to him. I am unable to hold that petitioner’s appeal under section 44(1) of MPLRC was not tenable against mutation order of the Tahsildar. The Apex Court in (2002) 6 SCC 16 [Dhannalal Vs. Kalawatibai and others], held as under:- “The plaintiff is dominus litis, that is, master of ,or having dominion over the case. He is the person who has carriage and control of an action. The Apex Court in (2002) 6 SCC 16 [Dhannalal Vs. Kalawatibai and others], held as under:- “The plaintiff is dominus litis, that is, master of ,or having dominion over the case. He is the person who has carriage and control of an action. In case of conflict of jurisdiction the choice ought to lie with the plaintiff to choose the forum best suited to him unless there be a rule of law excluding access to a forum of the plaintiff’s choice or permitting recourse to a forum will be opposed to public policy or will be an abuse of the process of law.” The respondents have also filed an appeal under section 44 before the Commissioner, which was decided by Annexure P-2 dated 15.11.2010. Resultantly, petitioner filed revision which was decided by the Board of Revenue on 5.7.2012 (Annexure P-1). Thus, even assuming that jurisdiction was also vested with the civil Court, it cannot be held that the petitioner’s appeal before the SDO was incompetent under section 44 aforesaid. Section 115 is erroneously relied by the respondents which has no application in the facts and circumstances of this case. In this case admittedly entry is made by Tahsildar and not by his subordinate employee/officer and, therefore, section 115 has no application. In the facts and circumstances, section 116 also has no application. Apart from this, civil suit filed in 2012 for declaring the sale deed dated 14.2.2005 as null and void whereas order of mutation was challenged before SDO on the basis of flaw in decision making process. Thus, subsequent filing of said suit for a different relief will not wipe out the right of petitioners to challenge orders passed by authorities under the MPLRC arising out of order of Tahsildar. 14. At the cost of repetition, it may be mentioned that the petitioner’s appeal under section 44 is tenable and, therefore, no fault can be found regarding maintainability of appeal before the SDO. Merely because some other remedy is also available, the petitioner cannot be deprived from the fruits of the decision of the SDO. 15. In Annexures P-1 and P-2, the competent authorities have failed to see whether the Tahsildar has followed the “due process”. The decision of SDO was not interfered with on that ground. Merely because some other remedy is also available, the petitioner cannot be deprived from the fruits of the decision of the SDO. 15. In Annexures P-1 and P-2, the competent authorities have failed to see whether the Tahsildar has followed the “due process”. The decision of SDO was not interfered with on that ground. This is settled in law that if a thing is required to be done in a particular manner, it has to be done in the same manner or not at all. In other words, the due process has to be followed and other methods are forbidden. The interference by the Commissioner was mainly on the ground that the power is only vested with the civil Courts. This order is affirmed by the Board of Revenue. I am unable to uphold this reason for the simple reasons that decision making process was subject to judicial review by the SDO under section 44 of MPLRC. Therefore, on the ground that a Civil Court may also have jurisdiction, the order could not have been interfered with. In the judgment of Sakhi Gopal Dixit (supra), this Court recorded that the petitioner was noticed and he did not file any objection pursuant to proclamation issued by the authority in accordance with the procedure prescribed by section 110 of the Code and, therefore, the authority after recording the statement of respondent No. 2 and his witnesses recorded a finding and allowed the application for mutation. That was a case where despite service of notice, the petitioner therein did not file any objection and did it after a period of one-and-half-months. That too before the appellate authority. In paras 6, 9 and 10 of the judgment of Sakhi Gopal Dixit (supra), this Court has given a specific finding that the due procedure prescribed by law was followed. On the basis of said reason, interference was declined. On the contrary in the present case, as analyzed above, the “due process” is not followed and the entire proceedings before the Tahsildar are polluted and vitiated. 16. Consequently, judgment of Sakhi Gopal Dixit (supra) is of no assistance to the respondents. This is settled in law that a judgment is precedent on the basis of facts and circumstances of a particular case. 16. Consequently, judgment of Sakhi Gopal Dixit (supra) is of no assistance to the respondents. This is settled in law that a judgment is precedent on the basis of facts and circumstances of a particular case. The principle of law/ratio decidendi is to be derived on the basis of relevant facts and the principles cannot be applied in vacuum or as a thumb rule without considering the fact situation of a particular case. The respondents have also relied on the judgment of B.K. Muniraju (supra) In my opinion, the said judgment is of no help to the respondents. In the judgment of B.K. Muniraju (supra), the scope of interference by this Court is restated by the Supreme Court, which shows that the interference may be made when the Court/authority below has acted in flagrant disregard of law or rules of procedure or acting in violation of principle of natural justice. On the basis of this judgment also, the interference needs to be made because the due procedure has been grossly violated by the Tahsildar. 17. Accordingly, in the opinion of this Court, Annexures P-1 and P-2 cannot be permitted to stand and are accordingly set aside. The order of the SDO is affirmed to the extent, he remitted the matter back to the Tahsildar to hear both the parties, peruse the relevant material and pass apporopriate orders. It is made clear that it will be open for the Tahsildar to take a decision in accordance with law on the basis of material on record and any finding on merits in the order of SDO will not bind him. Consequently, petition is allowed. No costs.