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2023 DIGILAW 672 (MP)

Mohan Singh v. Motilal

2023-07-26

MILIND RAMESH PHADKE

body2023
ORDER 1. The present petition, under Article 226/227 of the Constitution of India, has been directed against order dated 17.11.2021 passed in Case No.0023/Revision/2020-21 whereby the Additional Collector, District Shivpuri while allowing the said revision filed by the respondent had set aside order dated 7.9.2017 passed by SDO, Karera in which order dated 6.9.1997 passed by the Tahsildar, Karera granting patta of land bearing Survey No.1625, ad-measuring 0.90 hectares situated at Village Salaiya in favour of respondent under the provisions of the Madhya Pradesh Krishi Prayojan Ke Liye Upayog Ki Ja Rahi Dakhal Rahit Bhoomi Par Bhoomiswami Adhikaron Ka Pradan Kiya Jana (Vishesh Upabandh) Act, 1984 (for short ''Act of 1984''), was set aside. 2. Short facts of the case are that the respondent applied for grant of patta of land bearing Survey No.1625, ad-measuring 0.90 hectare situated at Village Salaiya before the Tahsildar Karera under the provisions of the Adhiniyam of 1984 and Tahsildar vide its order dated 06.09.1997, granted patta of the aforesaid land in favour of respondent. Against the said order, the original appellant Page Singh Thakur after came to know of the aforesaid patta in the year 1997, filed an appeal alongwith an application under section 5 of the Limitation Act before the SDO. 3. The SDO after hearing the parties vide order dated 7.9.2017 has held that the order dated 6.9.1997 is passed against the material available on record and the respondent was not eligible for grant of patta as per the provisions of Adhininyam 1984 and thus, set aside order dated 6.9.1997. Against order dated 7.9.2017, the respondent preferred a second appeal before the Additional Commissioner, Gwalior Division, Gwalior but vide its order dated 27.12.2019 the Additional Commissioner dismissed the appeal holding it to be not maintainable. Thereafter, the respondent preferred a revision before the Additional Collector, District Shivpuri alongwith an application under section 5 of the Limitation Act against the present petitioners, as during pendency of the appeal before SDO, Karera District Shivpuri, the original patta holder had expired and the petitioners being his legal representatives were substituted on the record. 4. Thereafter, the respondent preferred a revision before the Additional Collector, District Shivpuri alongwith an application under section 5 of the Limitation Act against the present petitioners, as during pendency of the appeal before SDO, Karera District Shivpuri, the original patta holder had expired and the petitioners being his legal representatives were substituted on the record. 4. The Additional Collector after hearing the parties passed the order dated 17.11.2021 and held that there is no remedy of appeal/revision against the order under the provisions of Adhiniyam, 1984 and therefore, order dated 7.9.2017 passed by the SDO, Karera District Shivpuri was held to be bad and accordingly, restored the order dated 6.9.1997 passed by the Tahsildar whereby patta was granted in favour of the respondent. Being aggrieved by order dated 17.11.2021 and order dated 6.9.1997, the present petition has been filed. 5. Learned counsel for the petitioner has argued that it is trite law that the person cannot be rendered remediless and if there is no provision of appeal/revision under the Adhiniyam, 1984 then resort can be taken under the provisions of Madhya Pradesh Land Revenue Code, 1959 which finds mention in Clause (b) under the definition of the Act of 1984 and therefore, the appeal under section 44 of the MPLRC was very well maintainable. 6. It was further argued that on bare perusal order dated 7.9.2017 passed by the SDO, it would be evident that the authority therein recorded a finding that it is not proved that the respondent is in possession since 2.10.1984 and therefore as per provisions of Adhininyam 1984, there could not have been any conferral of Bhumiswami rights on the respondent as he was not in possession from the date fixed under the Adhininyam, 1984 over Survey No.1625 on the cut off date 7.10.1984. 7. It was further argued that the Tahsilar while passing order dated 6.9.1997 has utterly failed to consider the eligibility criteria as provided under the provisions of Adhininyam, 1984. 8. It was further argued that from the Khasras of the relevant period, it would be evident that the names of ancestors of the petitioners were recorded in the revenue records over Survey No.1625, ad-measuring 90 hectare situated at Village Salaiya, Karera District Shivpuri. 9. 8. It was further argued that from the Khasras of the relevant period, it would be evident that the names of ancestors of the petitioners were recorded in the revenue records over Survey No.1625, ad-measuring 90 hectare situated at Village Salaiya, Karera District Shivpuri. 9. It was lastly argued that for taking benefits of the provisions of Adhininyam, 1984, a person is required to show himself to be an agricultural labourer as per section 2-A of the Adhininyam, 1984 and only thereafter, patta can be issued in respect of occupied land, but as on 2.10.1984, the ancestor of plaintiff i.e. Page Singh Thakur was in possession and today also, his legal representatives i.e. the present petitioners are in possession and are cultivating the land. 10. On the basis of the above arguments, it was prayed that the present petition be allowed and the orders impugned herein deserve to be set aside. 11. Per contra, counsel for the respondent while placing reliance on the matters of Laxman v. Surendra Kumar & Another reported in 1996 RN 231; Gambhir Singh vs. Dilip Kumar & Another reported in 1992 RN 335 and Kashiram & Others v. Amar Singh & Others reported in 2004 RN 332 contended that the Additional Collector has not committed any illegality or perversity in setting aside the passed by SDO in appeal preferred under section 44 of the Code, 1959 as under the Adhininyam, 1984 there is no provision of appeal; thus, it was prayed that the present petition being without any sum and substance deserves to be dismissed. 12. 12. After hearing counsel for the parties and perusing the record as well as the provisions of the Adhininyam, 1984, this Court finds that under the Adhininyam, 1984, there is no provision of appeal against the order passed under section 3 of the Adhiniyam, 1984 but revision under section 50 of the Code, 1959 is maintainable and while exercising the revisional powers, the authority if it appears to it that the Subordinate Revenue Officer has exercised jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or, acted in the exercise of its jurisdiction illegally or with material irregularity, may make such order in the case as it thinks fit; thus, it is apparent that for correcting irregularity and illegality committed by the Subordinate Courts, the revisional authority can call for the records and examine the matter and may make such orders in the case as it thinks fit which goes to show that the revisional authority while correcting the error is required to go into the irregularity or illegality committed by the Subordinate Courts. 13. This Court though finds that so far as setting aside the order passed in appeal by the SDO vide order dated 7.9.2017, the Additional Collector has not committed any illegality or irregularity but since the provision of filing of Revision was available to the petitioners, it should have been given a liberty to them to prefer a revision before the competent authority which since has not been granted appears to be an illegality committed by the revisional Court which needs to be corrected. 14. Thus this Court while partly allowing the petition gives a liberty to the petitioners to prefer a revision before the competent authority assailing the order passed by the Tahsildar and if such revision is preferred, the same shall be considered on its own merits without going into the question of limitation. 15. With the aforesaid observation, the present petition is disposed off finally.