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Madhya Pradesh High Court · body

2019 DIGILAW 839 (MP)

Mamta sharma v. Ajay Shankar

2019-12-03

VISHAL MISHRA

body2019
ORDER 1. On the joint request of learned counsel for parties, present writ petitions are analogously heard and are being decided by this common order, as they arise out of common litigation. 2. For the sake of convenience, the facts are borrowed from Misc. Petition No. 2167/2019. 3. The present petition is being filed challenging the order dated 6.3.2019 passed by the Board of Revenue, Gwalior. It is alleged by learned counsel for petitioner that petitioner has purchased the land in shape of plot ad-measuring area 1200 Sq. ft. of Survey No. 227/2 min 2 from the previous owner Mangal Singh by paying full consideration vide registered sale deed dated 26.4.2010. She got the possession of the land and her name was mutated in the Revenue Records on the basis of registered sale deed and after taking permission for construction of house over the land, she got constructed a house. She is also paying property tax in the Municipal Corporation, Gwalior. In support of her contentions, she has filed the copies of sale deed, diversion, NOC issued by Nazool Officer, Khashra and receipt of house tax in the petition. 4. It is further alleged that respondent without impleading the petitioner and without informing or issuing notice filed an application for batankan/partition before the Tahsildar, Gwalior and the application was allowed by the Tahsildar on the basis of the report given by R.I. vide order dated 28.2.2011 in Case No. 21/2010-11/A3. The petitioner was not impleaded as party to the aforesaid proceedings when the matter came to her knowledge, an appeal was preferred before the Sub Divisional Officer, Gwalior. The learned SDO has rejected the application filed by the petitioner on the ground of delay vide order dated 28.1.2013 and the same order was put to challenge before the Additional Commissioner, Gwalior Division Gwalior and learned Commissioner, after hearing both the parties has allowed the appeal vide its order dated 5.2.2014 and orders passed by the learned Tahsildar and Sub Divisional Officer, Gwalior were set aside. The order passed by the Commissioner was put to challenge before the Board of Revenue and the learned Board of Revenue has set aside all the orders vide its order dated 10.9.2014 passed in Case No. 668-PBR/2014 and remanded the matter with a direction to the Court of Tahsildar that to re-decide the application after providing opportunity of hearing to both the parties and fresh batankan/partition of land bearing Survey No. 227 (2) be done which is annexed as annexure P-7 in the petition. In pursuance to the order passed by the Board of Revenue, proceedings were taken by the Tahsildar and the learned Tahsildar called the report from RI for batankan and it was informed that no fresh batankan is required as the batankan has already been done with respect to Survey No. 227 vide order dated 18.2.1988 and the learned Tahsildar vide its order dated 20.5.2016 passed in Case No. 1/2014-15/A-3 not carried out fresh batankan in terms of orders passed by learned Board of Revenue as the batankan has already been carried out by the order dated 18.2.1988 in Case No. 20/86-87/A-27 and it was further observed that as the batankan order 18.2.1988 was never put to challenge before any court and has attained finality. The appeal was preferred by the SDO and the learned SDO vide its order dated 29.11.2016 has observed that learned Tahsildar has not complied with the order of learned Board of Revenue and has not carried out the batankan with respect to Survey No. 227/2 which was specifically directed by the Board of Revenue. Thus, the order passed by the learned Board of Revenue was not complied with. Again, SDO order was put to challenge before the Additional Commissioner, Gwalior Division Gwalior vide its order dated 30.8.2017 in Case No. 104/2016-17/appeal and the order passed by the SDO was set aside and confirmed the order of Tahsildar, Gwalior. In pursuance to the same, the matter again traveled upto Board of Revenue and learned Board of Revenue vide its order datred 6.3.2019 in Case No. PBR/Revision/Gwalior/land Revenue/2017/3399 dismissed the revision and confirmed the order of Court of Additional Commissioner, Gwalior Division Gwalior. 5. It is alleged by learned counsel for petitioner that vide order dated 18.2.1988 batankan of Survey No. 227 was got done. Batankan with respect to Survey No. 227/2 was never being done by the Tahsildar. 5. It is alleged by learned counsel for petitioner that vide order dated 18.2.1988 batankan of Survey No. 227 was got done. Batankan with respect to Survey No. 227/2 was never being done by the Tahsildar. The application for batankan with respect to Survey No. 227/2 was initially filed by the respondent and there is nothing on record to show that Survey No. 227/2 was being taken into consideration for batankan purpose. Thus, he submitted that the order passed by the Board of Revenue dated 10.9.2014 not complied with by the authorities. He has further argued that in pursuance to the registered sale deed dated 26.4.2010, mutation of the petitioner was got done in the Revenue Records. The sale deed clearly shows sale of survey No. 227/2 min 2 on the basis of which, name of the petitioner was entered in the Revenue Records. The aforesaid aspect is not in dispute. The Board of Revenue vide its order dated 10.9.2014 has observed that **vkosnd }kjk losZ Øekad 227 ¼2½ feu dk vius vkidks HkwfeLokeh crkdj cVkadu dh ekax dh xbZ gS vkSj vukosfndk Øekad 2 }kjk Hkh ;g vk/kkj fy;k tk jgk gS fd mlds }kjk Á'uk/khu Hkwfe Ø; dh xbZ gSA ,slh fLFkfr esa Á'uk/khu Hkwfe dk cVkadu dj ;g lqfuf'pr fd;k tkuk U;k;laxr gksxk fd Á'uk/khu Hkwfe okLro esa fdlds LokfeRo dh Hkwfe gSA** 6. The matter was remanded back to the Tahsildar for doing fresh batankan with respect to Survey No. 227/2, but the authorities have not complied with the aforesaid order and has relied in the order passed in the year 1988, whereby, the batankan of Survey No.227/2 was got done. Thus, it is alleged that batankan of Survey No. 227/2 has never been done which is asked for in the present petition. Thus, the order passed by the Board of Revenue and Additional Commissioner, Gwalior Division Gwalior observing that there is no requirement for doing the fresh batankan of Survey No.227/2 which is apparently illegal as Survey No. 227/2 has never been subjected of Bantankan. 7. Per contra, learned counsel for the respondent has denied the averments raised in the petition. It is alleged that there is no requirement for re-batankan as batankan of Survey No. 227 was already got done vide its order dated 18.2.1988 and the same is was never put to challenge and has attained finality. 7. Per contra, learned counsel for the respondent has denied the averments raised in the petition. It is alleged that there is no requirement for re-batankan as batankan of Survey No. 227 was already got done vide its order dated 18.2.1988 and the same is was never put to challenge and has attained finality. It is alleged that Survey No. 227/2 is a part of Survey No. 227, therefore, there is no requirement for fresh batankan of this Survey number. It is submitted that petitioner is claiming his rights on the basis of registered sale deed dated 26.4.2010 and the Revenue Authorities have no right to decide title on the basis of sale deed. It is the sole discretion of the Civil Courts. He has relied upon the judgment passed by the Hon’ble Supreme Court in the case of Gur Narain Das And Another v. Gur Tahal Das And Others reported in AIR 1952 SC 225 and AIR 1958 SC 138 and has argued that in terms of the aforesaid judgments passed by the Hon’ble Supreme Court that there is no requirement of fresh batankan of the property in question. It is further alleged that petitioner is under Article 227 of the Constitution of India wherein, the High Courts are exercising supervisory jurisdiction, therefore, little scope of interference is there. He has prayed for dismissal of present writ petition. 8. Other writ petition (W.P. No. 9069/2019) is being filed challenging the order dated 18.2.2019 passed by the Additional Commissioner, Gwalior Division Gwalior whereby, orders dated 2.11.2013 and 29.2.2016 passed by the Tahsildar and Sub Divisional order were found to be not in accordance with law and were accordingly, set aside. It is alleged that the proceedings under section 250 of M.P. Land Revenue Code were initiated by respondent alleging therein that in Village Ramtapura, land bearing Survey No. -227/2 ad-measuring area 0.052 hectare, petitioner was recorded as Bhumi Swami and on application for demarcation was filed and after demarcation, it was found that area 1004 Sq. Ft. out of 5595 Sq. Ft. area has been encroached and it was prayed that the encroachment may be removed and the possession of the land be handed over to the respondent. Ft. out of 5595 Sq. Ft. area has been encroached and it was prayed that the encroachment may be removed and the possession of the land be handed over to the respondent. It is alleged that the proceedings under section 250 of M.P.L.R.C can only be initiated against the agricultural land and admittedly in the present case the land is not agricultural land it falls in the Municipal limits, whereas, it has been diverted and after obtaining NOC from the respective Departments, the house have been constructed and the respondent is residing in the house. On the basis of aforesaid, the application filed under section 250 of M.P.L.R.C was rejected and appeal filed against the same was also rejected vide order dated 29.2.2016 by the SDO. In pursuance to the same, an appeal was preferred before the Commissioner, Gwalior, Division Gwalior and the learned Commissioner has allowed the appeal vide its order dated 18.2.2019, against which the present petition is being filed. 9. The learned Additional Commissioner, Gwalior Division Gwalior has relied upon the fact that the land bearing Survey No. 227/2 has already been partitioned vide order dated 18.2.1988. In pursuance to the same, the entries have already made in the records. Area 0.74 hectare was of ownership of Mangal Singh out of which 0.025 hectare left out for a way and 0.052 was sold by registered sale deed. Thus, by observing the aforesaid that application under section 250 M.P.L.R.C was allowed by the Additional Commissioner, Gwalior Division Gwalior and a direction was issued to dispossess the present petitioner from 1004 Sq. Ft. land of Survey No. 227/2. 10. Learned counsel for the respondents contended that another writ petition is being filed and is pending before this Court being M.P. No. 2167/2019 whereby, challenge is made to the batankan proceedings. He has drawn attention of this Court to the documents which have been filed in the Misc Petition No. 2167/2019 as the petitions are analogously heard together and has argued that land which was sold to the respondent herein vide registered sale deed dated 26.4.2010 the area was shown to be 1200 Sq. Ft. He has further drawn attention of this Court to the notice issued by the RI (Annexure R/3) dated 20.5.2016 wherein, the land which was sold by Mangal Singh to Ajay Shankar was 0.052 of Survey No. 227/2 min 2, but thereafter, entries have been changed. Ft. He has further drawn attention of this Court to the notice issued by the RI (Annexure R/3) dated 20.5.2016 wherein, the land which was sold by Mangal Singh to Ajay Shankar was 0.052 of Survey No. 227/2 min 2, but thereafter, entries have been changed. It is alleged that there is already a dispute with respect to Batankan of the Survey No. 227/2. In such circumstances, no relief can be granted to the petitioner till the batankan of Survey No. 227/2 is being done in pursuance to the earlier order passed by the Board of Revenue dated 10.9.2014. 11. Heard learned counsel for the parties and perused the records. 12. It is not in dispute that the order passed by the Board of Revenue dated 10.9.2014 there was a clear direction for partition of Survey No. 227/2. The learned Board of Revenue have recorded the findings with respect to filing of application for batankan of Survey No. 227/2 by the respondent himself and in pursuance to the same, the Board of Revenue has remanded the matter for fresh partition with respect to Survey No. 227/2. After the remand order, learned Tahsildar taking into consideration the previous partition of entire Survey No. 227 vide its order dated 18.2.1988 has disposed off the proceedings stating that there is no requirement for re-batankan of Survey number as the proceedings with respect to Survey No. 227/2 has remained unchallenged. The aforesaid order passed by the Tahsildar was affirmed by the SDO and by the Additional Commissioner. But the facts remains that the batankan of Survey No. 227/2 was sought by the respondent himself by filling an application. 13. The learned Tahsildar has not complied with the order passed by the Board of Revenue dated 10.09.2014 and has not carried out the fresh batankan with respect to Survey No. 227/2. Survey No. 227 was big Survey number of which the partition was already got done in the year 1988. Now the partition of Survey No. 227/2 is being sought by the respondent himself by filling application. 14. In the aforesaid facts and circumstances of the case, it cannot be said that Survey No. 227/2 has been partitioned at any point of time. Now the partition of Survey No. 227/2 is being sought by the respondent himself by filling application. 14. In the aforesaid facts and circumstances of the case, it cannot be said that Survey No. 227/2 has been partitioned at any point of time. Thus, the order passed by the learned Tahsildar, affirmed by the learned SDO, and Additional Commissioner appears to be per se illegal as they have not complied with the directions given by the learned Board of Revenue, Gwalior vide order dated 10.9.2014 and placing reliance upon the earlier order has disposed off the matter holding that fresh partition is not required as the same was done in the year 1988. 15. In view of aforesaid facts and circumstances of the case, the orders impugned dated 6.3.2019 (Annexure P-11), 20.5.2016 (Annexure P-8) and 30.8.2017 (Annexure P-10) passed by Board of Revenue, Gwalior, Naib Tahsildar, Circle Girwai, Tahsil, Gwalior and Additional Commissioner, Gwalior Division Gwalior respectively are unsustainable and are hereby set aside. The order dated 29.11.2016 (Annexure P-1) passed by Sub Divisional Officer (Revenue), Lashker District Gwalior is hereby affirmed. Respondent could not point out that Survey No. 227/2 has ever been partitioned. The matter is remanded back to the Tahsildar to comply with the directions issued by learned Board of Revenue vide its order dated 10.09.2014 and the order passed by Sub Divisional Officer, Revenue vide its order dated 29.11.2016. 16. As far as the order passed by the Additional Commissioner, Gwalior Division Gwalior with respect to allowing the application under section 250 of M.P.L.R.C is concerned, once this Court has allowed the Misc Petition No. 2167/2019 and has directed for complying with the order passed by the learned Board of Revenue, Gwalior dated 10.9.2014 and for partition with respect to Survey No. 227/2 in such circumstances, the order dated 18.2.2019 passed by the Additional Commissioner, Gwalior Division Gwalior holding that area 1004 Sq ft. land has been encroached by petitioner is unsustainable and is hereby set aside till the decision on partition with respect to Survey No. 227/2 is being done by the authorities. The respondent is at liberty to file fresh application under section 250 of M.P.L.R.C on the basis of partition with respect to Survey No. 227/2. The application be taken into consideration on the basis of the decision of the learned Tahsildar with respect to partition of Survey No. 227/2. 17. The respondent is at liberty to file fresh application under section 250 of M.P.L.R.C on the basis of partition with respect to Survey No. 227/2. The application be taken into consideration on the basis of the decision of the learned Tahsildar with respect to partition of Survey No. 227/2. 17. It is made clear that the authorities are expected to comply with the directions issued by Hon’ble Supreme Court in the case of Kranti Associates Private Limited and another v. Masood Ahmed Khan and others, (2010) 9 SCC 496, whereby specific directions were issued for passing a self contained speaking order even by the quasi judicial authorities after providing opportunity of hearing to the parties. 18. Accordingly, both the petitions are allowed and orders impugned dated 6.3.2019 (M.P. No. 2167/2019) and 18.2.2019 (W.P. No. 9069/2019) are quashed and matter is remanded back to the Tahsildar for decision on application for partition with respect to Survey No. 227/2 in compliance of the order passed by the learned Board of Revenue dated 1009.2014 in the earlier round of litigation. 19. With the aforesaid observation, the petitions are disposed of. No orders as to costs. .................