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2021 DIGILAW 63 (MP)

Vishnu Kumar v. State of M. P.

2021-01-21

VISHAL MISHRA

body2021
JUDGMENT : Vishal Mishra, J. 1. In the wake of unprecedented and uncertain situation due to outbreak of the Novel Corona virus (COVID-19) and considering the advisories issued by the Government of India, this petition has been heard and decided through video conferencing to maintain social distancing. 2. With the consent of the parties, the matter is finally heard through Video Conferencing. 3. This present miscellaneous petition under Article 227 of the Constitution of India is being challenging the order dated 26.06.2020 passed by the Additional Commissioner, Chambal Division, Morena, order dated 24.09.2016 passed by the S.D.O. (Revenue), Gohad and order dated 13.04.2016 passed by the Tahsildar, Gohad, whereby revision and appeal filed by the petitioners has been dismissed and the petitioners' entries made in the revenue record is directed to be changed in the name of the State Govt. and is directed to be recorded. 4. It is alleged that with respect to the properties in question, earlier the civil suit was filed by the petitioners against the respondent/State which was registered as Civil Suit No. which was decided vide judgment and decree dated 20.06.2014 in favour of the petitioners partly decreed. Thereafter, an appeal was preferred which was registered as Civil Appeal No. which was finally decided on 22.09.2014 and the findings arrived by the trial Court and the judgment and decree which was partly allowed in favour of petitioners has been completely allowed by the Appellate Court setting aside the finding which was not given in favour of the petitioners by the learned trial court. It is alleged that complaint was made against the petitioners by the respondent herein with respect to the fact that without any proper settlement of the land in question in favour of petitioners by playing fraud they have got their names entered into the revenue record and have shown owner of the property in question. The application was entertained by learned Tahsildar and notices were issued to the petitioners. The petitioners marked his presence before the Tahsildar and has brought to his notice by the judgment and decree passed by the trial court as well as appellate Court dated 20.06.2014 in Civil Suit No. 16,@2014 b-nh and 22.09.2014 Civil Appeal No.20/2014 ,-v-nh- wherein the petitioners have been declared as Bhumiswami and title holder of possession of the property in question. The learned Tahsildar has overlooked both the judgments and decrees passed by the civil Courts and on his own motion has passed the order dated 13.04.2016 holding that the petitioners could not show any valid order of settlement in their favour, in such circumstances, the order dated 03.01.2004 in Case No. The aforesaid order does not find place in the revenue record. It is argued that by playing fraud the names have been mutated in the revenue record. It is submitted that the learned Tahsildar has not disputed the judgment and decree passed by the civil Courts in favour of the petitioners. Despite of the same overlooking the findings given by the learned civil courts with respect to ownership of the properties of the petitioners, the order has been passed and directions have been issued to change the entries in the revenue record. The order passed by the Tahsildar dated 13.04.2016 was put to challenge by the petitioners by filing an appeal before the S.D.O. (Revenue) and the order passed by the learned S.D.O. (Revenue). He has also not disputed the fact with respect to judgment and decree passed by both the civil Courts but despite of the same has affirmed the order passed by the Tahsildar without there-being any discussion on the aspect that whether the land which was part of the civil suit wherein the State Govt. was also party is the same land for which the complaint has been made. There is no discussion with respect to the fact that whether any fraud was played by the petitioners before learned trial Courts and whether the orders and judgment and decree passed by the learned trial Courts have been ever put to challenge by the State govt. and the findings given by the courts below were reversed. It is submitted that on his own motion learned S.D.O. (Revenue) has affirmed the order passed by the learned Tahsidar, Gohad. An appeal was filed by the petitioners before the learned Additional Commissioner, Chambal Division, Morena as Case No. 40/2016-17/Appeal wherein the challenge was made to the order passed by the Tahsildar and the SDO (Revenue) has also confirmed the order over-looking the judgment and decree passed by the civil Courts. An appeal was filed by the petitioners before the learned Additional Commissioner, Chambal Division, Morena as Case No. 40/2016-17/Appeal wherein the challenge was made to the order passed by the Tahsildar and the SDO (Revenue) has also confirmed the order over-looking the judgment and decree passed by the civil Courts. It is argued that once a specific finding with respect to ownership and possession of the properties has given in the favour of petitioners then the civil Courts are having no civil jurisdiction to bypass the findings given by the civil courts and apply its own analogy and change the entries in the revenue record. It is pointed out that there is no discussion in the orders passed by all the three authorities with respect to the judgment and decree passed by the civil Courts and on the contrary, they have admitted the aforesaid aspect that there are judgments and decrees passed by the civil courts in favour of the petitioners. Despite of the same only on the basis of the notion that the petitioners failed to prove any order of settlement passed in their favour. In such circumstances, learned counsel for the petitioners has prayed for quashment of the impugned orders with a further direction to the authorities to restore the previous position in the revenue record showing the names of the petitioners as owners of the properties in question. 5. Per contra, learned Govt. Advocate for the State has opposed the petition stating that all the three authorities have concurrently held that the petitioners have failed to produce any order with respect to settlement of land in question. The order dated 03.01.2004 passed in Case No. 75@v&19 , on the basis of which, the entries have been made into the revenue record with respect to the petitioners. No such order or record is available in the revenue records. The origin of the order could not be pointed out by the petitioners, in such circumstances, it appears that by misrepresenting and playing fraud the entries have been made. However, it is not disputed that judgments and decrees passed by the Civil Courts are in favour of the petitioners. It is argued that under Article 227 of the Constitution of India the Courts are having limited supervisory jurisdiction and only required to see the procedural error committed by the authorities. However, it is not disputed that judgments and decrees passed by the Civil Courts are in favour of the petitioners. It is argued that under Article 227 of the Constitution of India the Courts are having limited supervisory jurisdiction and only required to see the procedural error committed by the authorities. Merits of the case are not required to be gone into as there are concurrent findings given by three courts below. Learned State counsel has prayed for dismissal of the petition. 6. Heard the learned counsel for the parties and perused the record. 7. On the perusal of the record, it is an admitted position that the judgment and decree dated 20.06.2014 in Civil Suit No. 16,@2014 b-nh- and 22.09.2014 Civil Appeal No. 20/2014 ,-v-nh- passed by learned trial Court as well as by appellate Court respectively and findings are in favour of the petitioners. The petitioners were declared as the owners of the land in question. On the basis of complaint made by the private respondents, the matter was taken up by the learned Tahsildar in the order dated 13.04.2016 has been passed. It is seen that learned Tahsildar has found that in the earlier case before the revenue authorities i.e. S.D.O. in Case No. 17/96-97/Appeal wherein in the order dated 22.05.1997 was passed and thereafter the revision filed before the Court of the Additional Commissioner, Chambal Division Morena No. 134/1999/2000 which was decided on 10.10.2000 the order was passed by Tahsildar dated 12.02.1997 passed in Case No. 48@96&97@v&19 passed by the Tahsildar has been set aside and the matter was remanded back to the authorities to issue the publication and thereafter hearing the authorities passed the fresh order as no order with respect to the settlement of the properties in favour of the petitioners could be found in the revenue record. Even in the present case after hearing the parties and going through the entire record, no order dated 03.01.2004 passed in Case No., 75@v&19] on the basis of which, the petitioners have got the names entered into the revenue record could be found or was ever produced by the petitioners. The aforesaid order is the order, on the basis of which, the mutation entries were made in the favour of the petitioners. The civil suits are subsequent litigation. The aforesaid order is the order, on the basis of which, the mutation entries were made in the favour of the petitioners. The civil suits are subsequent litigation. Although the State government is part of those litigation and the petitioners have been declared as Bhumiswami and title holder of the land in question, the State counsel could not point out the fact that whether any appeal is being filed against the judgment and decree passed by the trial court as well as the appellate Court but he could not dispute the factum of passing of the judgment and decree in favour of the petitioners. Although the three authorities i.e. Tahsildar, SDO (Revenue) and the Additional Commissioner have taken the note of judgment and decree passed by the learned court below but there is no other discussion with respect to the judgment and decree passed by the civil Courts. When the petitioners are claiming rights over the property on the basis of judgment and decree passed by the civil Courts, the revenue authorities are bound to go through the judgment and decree passed by the civil Courts prior to passing of the orders. The judgment and decree passed by the civil Courts are binding upon the revenue authorities. It is also seen that the State government was a party to the proceedings in a civil suit although not directly but through respective department i.e. Irrigation Department. It appears that the State has not contested the civil suit. There is nothing on record to show that there is any challenge to the judgment and decree passed by the revenue authorities. The Hon'ble Court in the case of Ambika Prasad Bakshi and another Vs. Onkar Prasad Saini and others, AIR 2005 MP 60 has held that the jurisdiction of the civil court is superior to the revenue court and whatever is decided by the civil court is the final decision and the Tahsildar is bound to make mutation on the basis of the orders of the civil courts. The revenue court is bound by the orders passed by the civil courts. The revenue court is bound by the orders passed by the civil courts. In such circumstances, when although this Court is having a limited jurisdiction of interference but this case is a glaring example where the mutation of the petitioners has been cancelled on the basis of over-looking of the orders passed by the civil courts and without there-being any discussion in the orders with respect to the civil courts orders. 8. Reasons are heartbeat of orders/judgments. Even the quasi judicial authorities are required to pass speaking orders as has been held by the Hon'ble Supreme Court in the case of M/s. Kranti Associates Pvt. Ltd. And another vs. Masood Ahmed Khan and others (2010) 9 SCC 496 has held as under: "51. 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 life blood 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 Harward 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 (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, 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"." 9. In such circumstances, there is substance in the petition. The petition is allowed. 10. The orders passed by the learned Additional Commissioner, Chambal Division, Morena as well as SDO (Revenue), Gohad and Tahsildar, Gohad are set aside. The matter is relegated back to the learned Tahsildar to reconsider the entire matter and after giving opportunity of hearing to the petitioners and the complainant and also taking note of the judgments and decrees passed by the civil courts in favour of the petitioners to pass a self contained speaking order and communicate the outcome of the same to the petitioners. 11. 11. Let the entire exercise be completed within a period of three months from the date of receipt of the certified copy of this order. 12. E-copy of this order be provided to the petitioners and it is made clear that E-copy of this order shall be treated as certified copy for practical purposes in respect of this order.