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2020 DIGILAW 448 (MP)

Sardar Singh v. Vimal Kumar

2020-03-19

VANDANA KASREKAR

body2020
ORDER 1. This petitioner has filed the present petition challenging the order dated 8.5.2018(Annexure-P-1), passed by Board of Revenue in Appeal No. 2829-PBR/2016. 2. In the present petition, the petitioner is owner of Survey Nos.174, 177, 178, 179, 180, 181, 182 and 183 situated at Gram Bori, Tahsil Jobat(before settlement old survey No. 150) and respondent is owner of Survey Nos.173, 175, 176(before settlement old survey No. 151). That, in the year 1991, the settlement took place and Survey No. 150 was renumbered as stated above and Survey No. 151 was also renumbered as stated above. 3. On 13.11.2009 and 26.3.2009, the respondent purchased a part of Survey Nos.173, 175 and 176 by registered saledeed(Annexure-P-4). Thereafter, the respondent filed an application under section 107 read with section 32 of M.P. Land Revenue Code seeking relief for revision of map with regard to aforesaid lands. On 19.6.2014, the respondent has also filed a civil Suit before the Court of civil Judge, Class - 1, Jobat, District - Alirajpur i.e., COS No. 29-A/2014 and seeking the relief for injunction as well as correction of map. 4. The Collector vide order dated 15.5.2015 has dismissed the said application. On 10.9.2015, the civil suit was partly decreed and denied the relief for correction/revision in map. The respondent, thereafter preferred first appeal before the Additional Commissioner whereby, the learned Commissioner has allowed the said appeal vide order dated 10.6.2016. Thereafter, a second appeal was preferred by the petitioner which was also dismissed on 8.5.2018. Being aggrieved by that order, the petitioner has filed the present petition. 5. Learned counsel for the petitioner submits that the order passed by the learned 1st appellate Court is non-speaking order and he has not applied his mind nor has passed a reasoned and speaking order, therefore, the order passed by the 1st appellate authority cannot be sustained. The 1st appellate authority while reversing the judgment of the learned Collector must assigned the cogent reasons, therefore, the order passed by the 1st appellate authority cannot be sustained. For the said purpose, he placed reliance on the judgment passed by the apex Court in the case of Kranti Associates (P) Ltd. v. Masood Ahmed Khan, reported in (2010) 9 SCC 496. He further relied on the judgment passed by the apex Court in the case of Santosh Hazari v. Purshottam Tiwari, reported in (2001) 3 SCC 179 . For the said purpose, he placed reliance on the judgment passed by the apex Court in the case of Kranti Associates (P) Ltd. v. Masood Ahmed Khan, reported in (2010) 9 SCC 496. He further relied on the judgment passed by the apex Court in the case of Santosh Hazari v. Purshottam Tiwari, reported in (2001) 3 SCC 179 . He further argues that section 107(5) of M.P. Land Revenue Code empowers the Collector to revise the map and section 120 provides requisition of assistance in preparation of map and record-of-rights. section 121 empowers the State Govt. to make the rules. That, as per section 120 and rules framed under section 121, the map of any land and any plot in Abadi land can be revised with the assistance of Revenue Inspector after providing opportunity of hearing to the holder of the land or plot as the case may be. The said provision is applicable to all agriculture lands and plot in Abadi area, therefore, the rules has to be strictly followed in all the revision of maps. He further submits that in the present case, as such no iota of evidence has been produced before this Court which demonstrates that while demarcating and preparing the report of land of the petitioner and respondent, no notice or opportunity of hearing whatsoever was given to the petitioner, therefore, the report was prepared behind the back of the petitioner and, therefore, such report cannot be relied and acted upon against the petitioner. So far as the violation of principle of natural justice is concerned, he relied on the judgment of the apex Court in the case of Debasis v. Canara Bank, reported in (2003) 4 SCC 557 . He therefore submits that in the light of the said judgment, report submitted by the Tahsildar to the Collector cannot be relied upon and the matter deserves to be remanded back to the Collector for adjudication of the application under section 107 of M.P. Land Revenue Code after giving opportunity to both the parties. He further submits that the proceedings submitted under section 107 cannot be called as an administrative function because not only such application has to be decided after conducting an enquiry, but it affects the value of an immovable property which is essential a civil right, therefore, it is a quasi judicial function. 6. He further submits that the proceedings submitted under section 107 cannot be called as an administrative function because not only such application has to be decided after conducting an enquiry, but it affects the value of an immovable property which is essential a civil right, therefore, it is a quasi judicial function. 6. So far as finding given by the civil Court is concerned, learned counsel for the petitioner submits that the civil Court has dismissed the plea for correction of Map on merits as well as on jurisdiction then, it cannot be said that the findings recorded by the civil Court based upon the evidence of the Revenue Inspector are not binding on respondent and, therefore, the findings recorded by the civil Court are binding upon the respondent and the 1st appellate authority has not considered this and illegally allowed the appeal. In the light of the aforesaid, learned counsel for the petitioner submits that the petition deserves to be allowed. 7. The respondent has also filed his reply and in the reply, the respondent has stated that the respondent had filed an application under section 107 read with section 32 of M.P. Land Revenue Code for correction of the Map. The said land was purchased by the respondent by registered sale-deed. The petitioner is not in possession of the land after settlement. That, on the basis of an application preferred by the respondent, a notice was issued and the Tahsildar, Jobat has inspected the spot and submitted the enquiry report. The Patwari and Revenue Inspector has submitted their report on the basis of new and old maps. The Collector, vide order dated 15.5.2015 has rejected the application submitted by the respondent on the ground that a civil Suit is pending between the petitioner as well as the respondent after correction of the map which was dismissed by the Court below. 8. Learned Senior Counsel appearing on behalf of the respondent submits that the said civil Suit was dismissed by the Court below on the ground that the civil Court has no jurisdiction to pass any order regarding the correction of the map and it is only the Revenue authority, who has jurisdiction in the matter. The respondent has preferred an appeal before the Collector against the said order to the Commissioner. The respondent has preferred an appeal before the Collector against the said order to the Commissioner. The Commissioner vide order dated 10.6.2016 has allowed the appeal preferred by the respondent and has directed to correct the map against which the petitioner has preferred second appeal before the Revenue Board and the same was dismissed, therefore, the present writ petition has been filed. He further submitted that the order has been challenged mainly on the ground that the Rules framed under section 120 of the M.P. Land Revenue Code has not been followed while passing the impugned order, by the Commissioner. He further submits that the said objection has been raised by the petitioner for the first time before this Court and, therefore, the petitioner has no right to raise all these points before this Court. He further submits that the Rules framed under section 120 are related to the Abadi land while disputed land is an agriculture land. It has further been submitted that the order passed by the Commissioner is just and proper. Thar, in the matter substantive justice has been done between the parties, therefore the writ petition is not maintainable under section 227 of the Constitution of India. For the said purpose, he placed reliance on the judgment passed by the apex Court in the case of Mysore Urban Development authority v. Veer Kumar Jain and ors., reported in (2010) 5 SCC 791 . 9. Learned Senior Counsel for the respondent further argues that the civil Court has dismissed the suit preferred by the respondent on the ground that the civil Court has no jurisdiction to pass any order regarding the correction of the map. Therefore, the petitioner has approached to the Collector. However, the Collector has dismissed the application on the basis of order passed by the civil Court. Thus, under section 107 of the M.P. Land Revenue Code, only the Collector has the power to make correction in the map and such application can be made at any time, therefore, order passed by the 1st appellate Court as well as by the Additional Commissioner is just and proper which does not call for any interference and, therefore, submits that the petition deserves to be dismissed. 10. Heard learned counsel for the parties and perused the record. 11. 10. Heard learned counsel for the parties and perused the record. 11. The petitioner has filed the present petition being aggrieved by order dated 8.5.2018, passed in Appeal No. 2829- PBR/2016 whereby, the appeal preferred by the petitioner has been dismissed and the order passed by the learned Additional Commissioner has been affirmed. 12. The petitioner is owner of Survey Nos.174, 177, 178, 179, 180, 181, 182 and 183 situated at Gram Bori, Tahsil Jobat (before settlement old survey No. 150) and respondent is owner of Survey Nos.173, 175, 176 (before settlement old survey No. 151). In the present case, the respondent has purchased a part of Survey Nos.173, 175 and 176 by registered sale-deed dated 13.11.2009 and 26.3.2010. After purchasing the land, the respondent filed an application under section 107 read with section 32 of the M.P. Land Revenue Code seeking relief of revision of map with regard to the aforesaid land(s). Thereafter, the respondent filed an application under section 107 read with section 32 of M.P. Land Revenue Code seeking relief for revision of map with regard to aforesaid lands. On 19.6.2014, the respondent has also filed a civil Suit before the Court of civil Judge, Class - 1, Jobat, District - Alirajpur i.e., COS No. 29- A/2014 and seeking the relief for injunction as well as correction of map. The Collector vide order dated 15.5.2015 has dismissed the said application preferred by the respondent. The respondent, in the meanwhile, has also filed a civil suit before the Court of civil Judge, Class-1, Jobat, District - Alirajpur seeking relief for injunction as well as correction of map. On 10.9.2015, the civil Suit was partly decreed and the civil Court denied the relief for correction/revision in map on the ground that the civil Court has no jurisdiction to pass an order in respect of correction of map and it is only the revenue authority who has jurisdiction. The respondent, thereafter preferred first appeal before the Additional Commissioner which was allowed vide order dated 10.6.2016. Against the said order, the petitioner has preferred a second appeal before the Board of revenue in which the order passed by the 1st appellate authority was affirmed. Being aggrieved by that order, the petitioner has preferred the present petition. 13. The respondent, thereafter preferred first appeal before the Additional Commissioner which was allowed vide order dated 10.6.2016. Against the said order, the petitioner has preferred a second appeal before the Board of revenue in which the order passed by the 1st appellate authority was affirmed. Being aggrieved by that order, the petitioner has preferred the present petition. 13. In view of above facts, these are following points for determination before this Court : (1) Whether, the First appellate authority has committed error in accepting the recommendation of Tahsildar without application of his mind and set aside the order of Collector by a non-speaking and unreasoned order ? (2) Whether, the First appellate authority committed an error while accepting the recommendation made by Tahsildar based upon the report of revenue inspector, wherein as such no opportunity was provided to the petitioner while preparation of report as per rules framed under section 120 and 121 of M.P. Land Revenue Code, 1959 vide notification dated 184-6477-VII-9, dated 6.1.1960 ? (3) Whether, the proceedings conducted under section 107 is a quasi-judicial function or it is an Administrative function ? (4) Whether, the appellate authority has committed error of law in not considering the judgment (Annexure P-6) passed by learned civil Court whereby, the prayer for revision/correction of map was rejected ? 14. So far as aforementioned first question regarding the acceptance of recommendation by Tahsildar is concerned, the learned 1st appellate authority has only accepted the recommendation given by the Tahsildar and has not applied his mind and has not passed reasoned and speaking order. The 1st appellate authority while reversing the judgment of the learned Collector must assigned the cogent reasons, therefore, the order passed by the 1st appellate authority cannot be sustained. The apex Court in the case of Kranti Associates (P) Ltd. (supra) has held that even the quasi-judicial authority or even an administrative authority while passing the order must record reasons in support of its conclusions. That in the present case, as already stated that the 1st appellate authority while reversing the judgment passed by the Tahsildar has not assigned any reason. 15. In the case of Santosh Hazari (supra), while reversing the judgment passed by the Lower Court, the apex Court has held as under : 15. That in the present case, as already stated that the 1st appellate authority while reversing the judgment passed by the Tahsildar has not assigned any reason. 15. In the case of Santosh Hazari (supra), while reversing the judgment passed by the Lower Court, the apex Court has held as under : 15. A perusal of the judgment of the trial Court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate Court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi and Ors. v. Bijendra Narain Choudhary, AIR 1967 SC 1124 ). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact (See Madhusudan Das v. Smt. Narayani Bai and ors., AIR 1983 SC 114 ). The rule is __ and it is nothing more than a rule of practice __ that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh and ors., AIR 1951 SC 120 ). Secondly, while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present section 100 substituted in the Code. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present section 100 substituted in the Code. The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one. 16. Therefore, in the light of the aforesaid judgment, as the 1st appellate authority has failed to assign reasons for reversing the judgment passed by the Tahsildar, therefore, the order passed by the 1st appellate authority cannot be sustained and deserves to be quashed. 17. So far as second question that (2) Whether, the First appellate authority committed an error while accepting the recommendation made by Tahsildar based upon the report of revenue inspector, wherein as such no opportunity was provided to the petitioner while preparation of report as per rules framed under section 120 and 121 of M.P. Land Revenue Code, 1959 vide notification dated 184-6477-VII-9, dated 6.1.1960 is concerned, that under section 107(5) only the Collector has the power to revise the map and section 120 provides requisition of assistance in preparation of map and record of rights. Section 121 empowers the State Government to make the rules. Section 120 and 121 of the M.P.L.R.C. reads as under : 120. Requisition of assistance in preparation of maps and record of rights. - Subject to rules made under this Code, any Revenue Officer, Revenue Inspector, [Nagar Sarvekshak] or Patwari may, for the purpose of preparing or revising any map or plan required for or in connection with any record or register under this Chapter, call upon any holder of land and any holder of plot in abadi to point out the boundaries of his land or plot. 121. 121. Power to make rules for land records. - The State Government may make rules for regulating the preparation, maintenance and revision of records required for the purposes of this Code. 18. It appears from perusal of section 120 and rules framed under section 121, which shows that map of any land and plot in abadi land can be revised with the assistance of revenue Inspector after providing opportunity of hearing to the holder of the land or plot as the case may be. The said provision applicable to all the agriculture lands and plot in Abadi area and, therefore, the rules has to be strictly followed in all the revision of maps. 19. In the present case, the respondent has failed to show that any notice or any opportunity of hearing was given to the petitioner while demarcating and preparing the report of land of the petitioner and respondent. The said exercise has been carried out behind the back of the petitioner. The report was prepared and submitted by the Revenue Inspector to Tahsildar which was further recommended by him and such report and such recommendations were accepted by the appellate authority while passing the impugned order. Therefore, such report cannot be relied and acted upon against the petitioner and the application for revision of map cannot be accepted by the 1st appellate authority. 20. In the case of Debasis (supra), the apex Court has held that even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression "civil consequences" encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life. Thus, in view of the principle laid down by the apex Court, the report prepared by the Revenue inspector followed by the Tahsildar to the Collector cannot relied and upon. 21. In its wide umbrella comes everything that affects a citizen in his civil life. Thus, in view of the principle laid down by the apex Court, the report prepared by the Revenue inspector followed by the Tahsildar to the Collector cannot relied and upon. 21. The next question whether, the proceedings conducted under section 107 is a quasi-judicial function or it is an Administrative function is concerned, the proceedings submitted under section 107 of the MPLRC cannot be called as an administrative function because not only such application has to be decided after conducting an enquiry, but it affects the value of an immovable property which is essential a civil rights, therefore, it is a quasi-judicial function and the same principle regarding conducting enquiry has been reiterated by this Court in the case of Shivnath Prasad v. Board of Revenue (2002) RN 238. Therefore, in view of the law laid down in the case of Shivnath Prasad (supra), it cannot be said that the power exercising under section 107 of MPLRC is an administrative function. 22. The fourth question whether, the appellate authority has committed error in not considering the judgment passed by learned civil Court whereby, the prayer for revision has been rejected is concerned, the respondent himself filed the suit before the civil Court after filing the application under section107 and when the civil Court has dismissed the pleas for correction of Map on merits as well as on jurisdiction then, it cannot be said that the findings recorded by the civil Court based upon the evidence of the Revenue inspector are not binding on respondent, therefore, the findings recorded by the civil Court are binding upon the respondent and the 1st appellate authority has not considered this and illegally allowed the appeal. 23. The contention of the learned Senior Counsel for the respondent that the petitioner has raised an objection regarding the non-compliance of the rules framed under section 120 is concerned, the said objection has not raised by the petitioner either before the 1st appellate Court or 2nd appellate Court and, therefore, for the first time it cannot be raised at this stage before this Court because it is purely a legal question and that can be raised at any time. The Rules framed under section 120 of the M.P.L.R.C. Are not applicable to the Abadi land but it is also applicable to the agriculture land. The Rules framed under section 120 of the M.P.L.R.C. Are not applicable to the Abadi land but it is also applicable to the agriculture land. The respondent further submits that the order passed by the Revenue Authorities are just and proper and does not call for any interference by exercising the powers given under Article 227 of the Constitution of India. 24. As per the judgment passed by the apex Court, power under Article 227 of the Constitution of India can be exercised by this Court if the order passed by the authorities are contrary to law. Therefore, this Court by exercising the powers under sections 227 of the Constitution of India can correct the injustice done to the petitioner. Thus, the contention of the learned Senior Counsel for the respondent, cannot be accepted. 25. In view of the aforesaid, the impugned order deserves to be quashed. Accordingly, the miscellaneous petition stands allowed and the impugned order dated 8.5.2018 (Annexure-P-1) is, hereby, quashed.