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Madhya Pradesh High Court · body

2019 DIGILAW 630 (MP)

Pana Bai v. State of M. P.

2019-08-30

SHEEL NAGU

body2019
JUDGMENT : 1. Shri K. N. Gupta, learned senior counsel with Shri P. K. Dwivedi, learned counsel for the petitioners. Shri R. S. Bansal, learned Deputy Government Advocate for the respondents/State. A short but interesting question involved herein which begs for an answer is as follows : “Whether impleadment of the State through Collector of the concerned district satisfies the requirement of law of impleadment of necessary party or the particular department to which the land in question belongs is required to be impleaded to save the litigation from being sacrificed at the alter of non-impleadment of necessary party.” 2. This petition invoking supervisory jurisdiction of this Court under Article 227 of the Constitution assails the final order dated 3-3-2016 of Board of Revenue, Gwalior contained in Annexure P/1 allowing the revision of the State thereby setting aside the order of First and Second Appellate Authority i.e. SDO and Additional Commissioner, Gwalior respectively who had upheld the foundational order of Tehsildar dated 8-8-2013 allowing the application for mutation preferred by petitioners herein in respect of Survey No. 359 admeasuring 3 bigha and 9 biswa at village Veerpur, Tehsil and District, Gwalior. 3. It may not be out of place to mention here that application for mutation preferred by petitioners No. 1 and 2 herein initially suffered dismissal at the hands of Tehsildar, Gwalior by order dated 8-8-2013 on the ground that since the land belongs to irrigation department which was not impleaded in the earlier litigation i.e. civil litigation which ended in judgment and decree dated 15-9-2005 passed in S. A. No. 166/1999 by the High Court, the said decree is not binding on Tehsildar. 3.1 However the record indicates that on the very same day i.e. 8-8-2013 Tehsildar took a volte face. 4. It appears that due to directions passed in W. P. No. 6394/2010 on 6-2-2012 (vide P/3) and pending contempt petition bearing No. 1056/2012 before the High Court for non-compliance of order dated 6-2-2012, the Tehsildar reconsidered the prayer for mutation and allowed the application of petitioners No. 1 and 2 herein due to following compelling circumstances : 1. 4. It appears that due to directions passed in W. P. No. 6394/2010 on 6-2-2012 (vide P/3) and pending contempt petition bearing No. 1056/2012 before the High Court for non-compliance of order dated 6-2-2012, the Tehsildar reconsidered the prayer for mutation and allowed the application of petitioners No. 1 and 2 herein due to following compelling circumstances : 1. The judgment and decree dated 15-9-2005 passed in favour of petitioners herein in S. A. No. 166/1999 declaring petitioners to be a lease holder of the suit land bearing Survey No. 359 admeasuring 3 bigha and 9 biswa at village Veerpur, Tehsil and District Gwalior along with decree of injunction against the State restraining State from interfering with the possession of petitioners herein over the said suit land. 2. Order dated 6-2-2012 passed in W. P. No. 6394/2010 preferred by petitioners herein directing Naib Tehsildar/Tehsildar Lashkar, Gwalior to expeditiously decide the pending application of petitioners seeking mutation within three months. 3. Pendency of Conc. No. 1056/2012 in the High Court alleging noncompliance of order dated 6-2-2012 in W. P. No. 6394/2019. 4. Absence of material to show that the State has assailed the judgment and decree of High Court, Bench at Gwalior dated 15-9-2005 in S. A. No. 166/1999, in any higher or the same forum. 4.1 Petitioners No. 1 and 2 unsuccessfully assailed the rejection of their application for mutation before the SDO in first appeal. However, the second appeal preferred by petitioners No. 1 and 2 was allowed by the Additional Commissioner, Gwalior directing Tehsildar to enter the names of petitioners No. 1 and 2 herein in revenue record in terms of decree dated 15-9-2005 passed in S.A. No. 166/1999. The reason assigned by the second appellate authority for directing mutation in favour of petitioners No. 1 and 2 was that non-impleadment of irrigation department is inconsequential since the State was impleaded as party through Collector, Gwalior. 4.2 Aggrieved by the order of second appellate authority, the State represented through Executive Engineer, Water Resources Department preferred revision which has been allowed vide impugned order (Annexure P/1) on 3-3-2016 by setting aside the order of second appellate authority and restoring the order of SDO dated 26-8-2014. In sum in substance, prayer for mutation made by petitioners No. 1 and 2 stood rejected. 5. Learned counsel for petitioners relying upon the decisions in Chief Conservator of Forests, Govt. In sum in substance, prayer for mutation made by petitioners No. 1 and 2 stood rejected. 5. Learned counsel for petitioners relying upon the decisions in Chief Conservator of Forests, Govt. of A. P. vs. Collector and others, (2003) 3 SCC 472 , Ambika Prasad Bakshi and another vs. Onkar Prasad Saini and others, AIR 2005 M. P. 60 (para 9 and 5), State of Tripura and ors. vs. Manabendra Das Chowdhary, AIR 2001 Gauhati 178 (para 7) submits that once the State of M. P. was represented through Collector, there was no necessity of impleading the particular department to which the land in question belongs and therefore, requirement of sections 79 and 80, Civil Procedure Code read with Order 27, Rule 3, Civil Procedure Code stands satisfied. It is further submitted by learned counsel for petitioners that, not having assailed the judgment and decree passed in S. A. No. 166/1999 wherein the State had been impleaded through the Collector, Gwalior, the State is now estopped under section 11, Civil Procedure Code from raising objection of State having not been properly impleaded amounting to non-impleadment of necessary party. 6. Per contra, learned counsel for respondents/State by relying upon the decisions in S. P. Chengalvaraya Naidu (Dead) by LRs. vs. Jagannath (Dead) by LRs. and others, (1994) 1 SCC 1 , Mumbai International Airport Pvt. Ltd. vs. Regency Convention Centre and Hotels Pvt. Ltd. and others, (2010) 7 SCC 417 , Amit Kumar Shaw vs. Farida Khatoon, AIR 2005 SC 2209 (para 10), Prem Singh and others vs. Birbal and others, (2006) 5 SCC 353 submits that by wrongly impleading the State through Collector, Gwalior, petitioners have not come with clean hands and have indulged in fraud which vitiates every fibre of the litigation thereby dis-entitling the petitioners to seek remedy especially under the supervisory jurisdiction under Article 227 of the Constitution. It is further submitted that allowing of this petition would adversely affect the suit filed by the State (represented through the Department of Water Resources) vide Annexure R/5 for a decree of declaration of title in respect of the same suit property with further prayer for a declaratory decree that the judgment and decree dated 15-9-2005 in S. A. No. 166/1999 is not binding upon the State along with decree of permanent injunction restraining petitioners herein from interfering with the possession of State over the suit property. It is submitted by learned counsel for the State that the said suit is pending adjudication and order passed by this Court may jeopardise the cause of the State in the said suit. 7. After hearing learned counsel for the rival parties, it appears that the Board of Revenue seems to be labouring under a misconception of law that unless the State is represented through the department concerned to which the suit land belongs, any judgment and decree passed in a suit shall not be binding on the State. 8. In the instant case, the judgment and decree in favour of petitioner was passed in S. A. No. 166/1999. In this second appeal State was represented as defendant through the Collector of the concerned district. However, department concerned to which the suit land belonged was not impleaded. 9. It is pertinent to mention here that all lands including the minerals lying over and under it are vested in the State. Section 57 of M. P. Land Revenue Code, 1959 is reproduced below for ready reference and convenience : “57. State ownership in all lands. — (1) All lands belong to the State Government and it is hereby declared that all such lands, including standing and flowing water, mines, quarries, minerals and forests reserved or not, and all rights in the sub-soil of any land are the property of the State Government : Provided that nothing in this section shall, save as otherwise provided in this Code, be deemed to affect any rights of any person subsisting at the coming into force of this Code in any such property. (2) Where a dispute arises between the State Government and any person in respect of any right under sub-section (1) such dispute shall be decided by the State Government. (3) Omitted. (3-a) Omitted. (4) Omitted.” 10. The State Government for its convenience earmarks particular land used for particular purpose to belong to a particular department. This does not mean that the land allotted to a particular department is vested in it to the exclusion of all other departments. The ownership of Government land is State-centric and not department-centric. The law does not recognize particular department of the Government to be exclusive owner of particular Government land. 11. This does not mean that the land allotted to a particular department is vested in it to the exclusion of all other departments. The ownership of Government land is State-centric and not department-centric. The law does not recognize particular department of the Government to be exclusive owner of particular Government land. 11. The aforesaid is bolstered by the provision of Article 300 of Constitution of India and section 79 of Civil Procedure Code which does not require the Government to be impleaded through any particular department. 11.1 Article 300 of Constitution and section 79 of Civil Procedure Code are reproduced below for ready reference and convenience : “300. Suits and proceedings. — (1) The Governor of India may sue or be sued by the name of the Union and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted. (2) If at the commencement of this Constitution (a) any legal proceedings are pending to which the Dominion of India is a party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and (b) any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the Province or the Indian State in those proceedings.” “Section 79. Suits by or against Government. — In a Suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be : (a) in the case of a suit by or against the Central Government, the Union of India, and (b) in the case of a suit by or against a State Government, the State.” 12. — In a Suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be : (a) in the case of a suit by or against the Central Government, the Union of India, and (b) in the case of a suit by or against a State Government, the State.” 12. It is well known that Collector of a district is the head of the administration or the Chief Executive Officer of the district executive force who can very well represent the State in any litigation concerning Government land lying within the territorial jurisdiction of the particular district. The Division Bench of the Gauhati High Court in the case of State of Tripura and others (supra) has emphasised the mode of representation of a State Government in a litigation in para 8 which is reproduced below for ready reference and convenience : “8. The submission of Mr. U. B. Saha, learned Senior Government Advocate appearing for the respondents regarding impleadment or non-impleadment of Forest Department as a party in the present case is correct. Even Article 300 of Constitution or section 79 or other provisions of Civil Procedure Code do not require that specific department should be impleaded as a necessary party in a suit filed against the State. Under the principle of respondent superior, Union Government or the respective State Government are liable to the extent as prescribed for under Article 300 and in this regard no law has been made in the Parliament or in the State Legislature as yet. Thus, State or Union Government is liable for the act committed by any officer or official of any department. If it comes within the fold of liabilities to be shouldered by the Union of India or respective State under the law. For that matter, it is not necessary that the Forest Department should be impleaded as party though it may be proper to implead the respective officer/official connected with cause of action to be impleaded in the suit as proper party only.” 13. What is required to be ensured in a litigation involving Government and is that the State Government concerned is impleaded, since it is a necessary party. What is required to be ensured in a litigation involving Government and is that the State Government concerned is impleaded, since it is a necessary party. Whether the State is impleaded through the Principal Secretary of the particular department to which the suit land is allotted or the State is represented through the Collector of the district within which the suit land lies, is not very relevant. Idea is to ensure that adjudication of litigation involving property of the State is conducted and concluded only after impleading and hearing the State. 14. In view of above, the impugned finding recorded by the Board of Revenue that State Government was not impleaded through the concerned department in the second appeal and thus, the judgment and decree in second appeal is not binding upon the State and the revenue authorities, is not tenable in the law. 15. If the aforesaid impugned findings of the Board of Revenue are left undisturbed, then catastrophic result would follow, that a duly passed judgment and decree by the Court of civil jurisdiction would be rendered ineffective and not binding upon the revenue authorities. Chaotic situation would arise as revenue authorities would be able to ignore the judgment and decree of the Civil Court which is otherwise binding on them. 16. To avoid the aforesaid anomalous situation, the impugned findings of the Board of Revenue cannot be left undisturbed. Consequently, this petition stands allowed to the following extent : 1. The impugned order of Board of Revenue in Revision No. 3824- PBR/2015 vide Annexure P/1 is set aside. 2. The order of Tehsildar dated 8-8-2013 allowing application of mutation of petitioner in respect of the land bearing Survey No. 359 admeasuring 3 bigha and 9 biswa in village Veerpur, Tehsil and District Gwalior is restored. 3. The petitioner shall be entitled to cost of this litigation which is quantified at Rs. 2,000/- which shall be paid to petitioner by transferring the said amount by digital transfer in his bank account within a period of one month from today and file compliance report in Registry of this Court within a month thereafter, failing which Registry is directed to list this case as PUC for execution. Petition allowed.