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Madhya Pradesh High Court · body

2020 DIGILAW 373 (MP)

Hargyan v. Bhagwan Singh

2020-03-04

G.S.AHLUWALIA

body2020
ORDER 1. This petition under Article 227 of the Constitution of India has been filed against the order dated 1.5.2017 passed by the Board of Revenue in Revision No. 2695-PBR/2016, the order dated 6.7.2016 passed by Additional Commissioner, Gwalior Division, Gwalior in Case No. 21/15-16/Appeal as well as the order dated 5.8.2015 passed by the Additional Tahsildar, Circle Bahodapur, District Gwalior in Case No. 23/14-15/A-27. 2. It is the case of the petitioner that the respondents no.1 and 2 filed an application under section 178 of M.P. Land Revenue Code for partition of holding. The first application was dismissed for want of prosecution by order dated 24.7.2014. Thereafter another application was filed on 30.10.2014 and the Fard Batwara was summoned. After receiving the Fard Batwara it was directed to be published and the notices were issued to the respondents including the petitioner. It is submitted by the counsel for the petitioner that on 20.3.2015 the petitioner filed an objection to the Fard Batwara and by order dated 31.3.2015 time was granted to the respondents no.1 and 2 for filing reply. The arguments on the objections filed by the petitioner were heard on 6.4.2015 and thereafter the case was adjourned and ultimately on 11.5.2015 the following order was passed:- ^^11@05@2015 1 izdj.k is'kA 2 mHk; i{k vfHk- ds rdZ Jo.k fd, x,A vukosnd vfHk- dh vkifRr fd cVkadu dk vf/kdkj bl U;k;ky; dks ugha gSaA vukosnd vfHk- }kjk izLrqr tokc LohÑr dj vkifRr vLohÑr dh tkrh gSA 3 U;k; fgr esa izdj.k vkosnd ds izfrijh{k.k gsrqA** 3. By referring to the objections filed by the petitioner, it is submitted by the counsel for the petitioner that various objections were raised including the land given to the parties in the Fard Batwara. By referring to the objections filed by the petitioner, it is submitted by the counsel for the petitioner that various objections were raised including the land given to the parties in the Fard Batwara. However, none of the objections filed by the petitioner were decided by the Additional Tahsildar and accordingly the revision was filed by the petitioner before the Board of Revenue which was registered as Revision No. 1044-PBR/15 and the said revision was dismissed by the order dated 7.7.2015 by passing the following order: ^^07@07@2015 vkosnd vf/koDrk }kjk xzkg~;rk ij izLrqr rdksZ ij fopkj fd;k tkrk x;k rFkk rglhy U;k;ky; ds vkns'k fnukad 11-5-2015 dh lR;izfrfyfi dk voyksdu fd;k x;kA rglhynkj ds le{k vkosnd dh vksj ls bl vk'k; dh vkifRr izLrqr dh xbZ gS fd cVkadu dk vf/kdkj rglhynkj dks ugha gS] tcfd cVkadu djus gsrq rglhynkj gh l{ke gS] vr% vkosnd dk vkifRr vkosnu i= fujLr djus esa rglhynkj }kjk izFken`"V;k fofèklaxr dk;Zokgh dh xbZ gSA QyLo:i ;g fuxjkuh vk/kkjghu gksus ls blh Lrj ij vxzkg; dh tkrh gSA** 4. Thereafter the review petition was filed which was registered as Review No. 2109-PBR/2015 which was also dismissed by the Board of Revneue by order dated 16.7.2015. The orders passed by the Board of Revenue were challenged by the petitioner by filing W.P. No. 5338/2015. Since there was no interim order, therefore, the proceedings continued before the Court of Additional Tahsildar Circle Bahodapur, Tahsil Gwalior and ultimately the same came to an end by order dated 5.8.2015 and accordingly W.P. No. 5338/2015 was disposed of by this Court vide order dated 17.8.2015 with the following directions: "Accordingly, this petition stands dismissed as rendered infructuous with liberty to the petitioner to assail the order of the Additional Tahsildar dated 5.8.2015 in the above said case before appropriate forum in accordance with law." 5. It is submitted by the counsel for the petitioner that thereafter the petitioner filed an appeal before the Court of the S.D.O. Gwalior which was registered as Appeal No. 40/2014-15/Appeal and the order dated 5.8.2015 passed by the Additional Tahsildar, Circle Bahodapur, Tahsil Gwalior was set aside and the appeal was allowed. 6. Being aggrieved by the order passed by the S.D.O., the respondents No. 1 and 2 filed Second Appeal No. 21/15-16/Appeal before the Court of Additional Commissioner, Gwalior Division, Gwalior. 6. Being aggrieved by the order passed by the S.D.O., the respondents No. 1 and 2 filed Second Appeal No. 21/15-16/Appeal before the Court of Additional Commissioner, Gwalior Division, Gwalior. The said appeal was allowed by the order dated 6.7.2016 and the Additional Commissioner Gwalior Division Gwalior gave the erroneous finding of fact that the Fard Batwara was prepared with the consent of all the necessary parties and was also observed that the order dated 11.5.2015 was affirmed by the Board of Revenue by order dated 7.7.2015 passed in Revision No. 1044/PBR/2015. It was also mentioned by the Additional Commissioner, Gwalior Division Gwalior that the partition proceedings have taken place after giving due notice to the necessary parties and the objection have been decided after hearing the same and thus it was held that no mistake was committed by the Additional Tahsildar, Circle Bahodapur, Tahsil Gwalior by allowing the application for partition and the order passed by the S.D.O. was set aside. 7. Being aggrieved by the order passed by the Additional Commissioner, Gwalior Division, Gwalior the petitioner filed revision before the Board of Revenue which was registered as Revision No. 2695-PBR/2016 and the same has been dismissed by the impugned order dated 1.5.2017. 8. Challenging the orders passed by the authorities below, it is submitted by counsel for the petitioner that it is incorrect to say that the objections filed by the petitioner were decided by the Additional Tahsildar, Circle Bahodapur, Tahsil Gwalior by order dated 11.5.2015. It is submitted that although by order dated 11.5.2015 the objection filed by the petitioner was dismissed, but it was dismissed by mentioning rejected ^^vLohÑr** No reasons were assigned by the Additional Tahsildar, Circle Bahodapur, Tahsil Gwalior. Further the revision filed against the order was also dismissed by the Board of Revenue by non-speaking order and the objections which was raised by the petitioner in his objection were never taken note off. Further the revision filed against the order was also dismissed by the Board of Revenue by non-speaking order and the objections which was raised by the petitioner in his objection were never taken note off. It is further submitted that the Additional Commissioner, Gwalior Division, Gwalior while deciding the appeal filed by the respondents no.1 and 2 had referred to the order dated 7.7.2015 passed by the Board of Revenue in Revision No. 1044/PBR/2015 but ignored the order dated 17.8.2015 passed by this Court in W.P. No. 5338/2015 by which it was held that since the original proceedings which were pending before the Additional Tahsildar, Circle Bahodapur, Tahsil Gwalior have already come to an end, therefore the petition filed by the petitioner against the order dated 11.5.2015 passed by Additional Tahsildar, Circle Bahodapur, Tahsil Gwalior, has rendered infructuous and a liberty was granted to the petitioner to assail the order of Additional Tahsildar, Circle Bahodapur, Tahsil Gwalior before the appropriate forum. Thus, by no stretch of imagination it can be said that the order dated 11.5.2015 passed by the Additional Tahsildar, Circle Bahodapur, Tahsil Gwalior had attained finality. It is further submitted that the reasons are the heartbeat of the orders, however, the objections filed by the petitioner have not been considered by any of the authority i.e. Additional Tahsildar, Circle Bahodapur, Tahsil Gwalior, Additional Commissioner, Gwalior Division, Gwalior and the Board of Revenue, therefore, the impugned orders are liable to be set aside. 9. Per contra it is submitted by the respondents No. 1 and 2 that the objections filed by the petitioner were duly considered and decided by the Additional Tahsildar, Circle Bahodapur, Tahsil Gwalior as well as the Board of Revenue, therefore, no interference is warranted. 10. Heard the learned counsel for the parties. 11. The copies of the objections which were filed by the petitioner before the Additional Tahsildar, Circle Bahodapur, Tahsil Gwalior have been placed on record as Annexure P-8. From the said objections it is clear that various objections were raised by the petitioner with regard to the procedure which was being adopted by the Additional Tahsildar, Circle Bahodapur, Tahsil Gwalior as well as the Fard Batwara which was prepared by the Patwari. From the said objections it is clear that various objections were raised by the petitioner with regard to the procedure which was being adopted by the Additional Tahsildar, Circle Bahodapur, Tahsil Gwalior as well as the Fard Batwara which was prepared by the Patwari. None of the objections raised in the objections filed by the petitioner have been taken into consideration by any of the authority and even the Board of Revenue had dismissed the Revision No. 1044-PBR/2015 by passing a completely non-speaking order. The Supreme Court in the case of Kranti Associates Private Limited and another v. Masood Ahmedc Khan and others, reported in (2010) 9 SCC 496, has held as under: "47. Summarizing the above discussion, this Court holds: (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior Courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a Judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber-stamp reasons" is not to be equated with a valid decision-making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harvard Law Review 731-737). (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain, (1994) 19 EHRR 553, at 562 para 29 and Anya v. University of Oxford, 2001 EWCA Civ 405 (CA), wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions". (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "due process". 12. Thus, it is clear that the reasons are necessary so that the litigant/party may come to know as to why his objection or application has been rejected. Disclosure of reasons also indicates due application of mind. The rejection of the objections of the application by simple writing the word "rejected" indicates the arbitrariness of the authority concerned which is completely unknown to the principle of fair play. Unfortunately even the Board of Revenue while entertaining the revision against the order dated 11.5.2015 has also failed to consider that aspect. 13. The rejection of the objections of the application by simple writing the word "rejected" indicates the arbitrariness of the authority concerned which is completely unknown to the principle of fair play. Unfortunately even the Board of Revenue while entertaining the revision against the order dated 11.5.2015 has also failed to consider that aspect. 13. Accordingly, it is held that the order dated 11.5.2015 passed by the Additional Tahsildar, Circle Bahodapur, District Gwalior is bad in law and it is hereby quashed. All the subsequent proceedings including the order dated 5.8.2015 passed by the Additional Tahsildar, Circle Bahodapur, Tahsil Gwalior as well as the order dated 6.7.2016 passed by the Additional Commissioner, Gwalior Division, Gwalior in Case No. 21/15-16/Appeal and the order dated 1.5.2017 passed by the Board of Revenue in Revision No. 2695- PBR/2016 are hereby quashed. 14. The matter is remanded back to the Additional Tahsildar, Circle Bahodapur, Tahsil Gwalior who shall proceed further after deciding the objections filed by the petitioner by passing a speaking order. Petitioner and the respondents no.1 and 2 are directed to appear before the Court of Additional Tahsildar, Circle Bahodapur, Tahsil Gwalior on 30.3.2020. Since the other respondents have not chosen to appear before this Court, therefore, the Additional Tahsildar, Circle Bahodapur, Tahsil Gwalior is directed to issue notice to the other parties before proceed further. 15. With the aforesaid observation, this petition succeeds and is allowed.