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2023 DIGILAW 696 (MP)

Anil Kumar v. State of M. P.

2023-08-14

MILIND RAMESH PHADKE

body2023
ORDER 1. The present petition under Article 227 of the Constitution of India has been filed against the order dated 11.10.2022 passed by SDO, Ambah, District Morena passed in Case No.0005/2022-23, whereby while dismissing the appeal, the order dated 11.03.2022 passed by Tehsildar Ambah District Morena in case no.2015/A-6/2021-22, whereby an application for mutation of the petitioner in the revenue records on the basis of the Will was dismissed, was affirmed. 2. Brief facts of the case are that the petitioner, respondent No.5 and 6 are the sons of Late Shri Kailash Chandra Agarwal, respondent No.10 is the daughter, respondent no.4 is the wife, respondent No.7 and 8 are the daughtersin-law and the respondent No.9 is the grand son of Late Shri Kailash Chandra Agarwal. Late Shri Kailash Chandra Agarwal was having property situated at Ambah District Morena and had executed a Will in favour of the respondents No.4 to 9 and the petitioner and divided the share as his choice on 12.04.2021. Shri Kailash Chandra Agarwal expired on 3.5.2021 and after his death the Will came into force. The petitioner, thereafter, moved an application before Tehsildar Ambah District Morena and the same was registered as Case No.2015/A-6/2021-22 and notices were issued to the concerned parties. All the family members agreed as per the Will and despite this Tehsildar rejected the application and mutated the name on the basis of the succession vide order dated 11.3.2022. Being aggrieved by the aforesaid order passed by Tehsildar the petitioner had filed an appeal before respondent No.2, but the said appeal was also dismissed vide order dated 11.10.2022 and the order of Tehsildar was affirmed. Being aggrieved by the impugned orders Annexure P/1 and P/2 the present petition has been filed. 3. At the outset, the learned Counsel for respondent/State has raised a preliminary objection that since the order passed by SDO is appealable order, therefore, in the light of the availability of efficacious alternative remedy to the petitioner, this petition is not maintainable. 4. Being aggrieved by the impugned orders Annexure P/1 and P/2 the present petition has been filed. 3. At the outset, the learned Counsel for respondent/State has raised a preliminary objection that since the order passed by SDO is appealable order, therefore, in the light of the availability of efficacious alternative remedy to the petitioner, this petition is not maintainable. 4. To the aforesaid objection the learned counsel for the petitioner submitted that though there is a provision of second appeal against the order passed by SDO passed in first appeal in the mutation proceedings, but since the order of Tehsildar as well as SDO are per se illegal and against the principles of natural justice, therefore, in the light of the judgment passed by Hon'ble apex Court in the matter of Whirlpool Corporation vs. Registrar of Trademarks, Mumbai, reported in 1998 (8) SCC 1 and in the matter of Harbanslal Sahnia v. Indian Oil Corporation Ltd. reported in 2003 (2) SCC 107 , it was contended that where there is failure of principles of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged, the Courts may exercise powers under the writ jurisdiction and availability of alternative remedy would not be a bar and since the very orders passed by Tehsildar as well as the SDO had been exercised in contravention of the jurisdiction vested in it, therefore, the alternative remedy is not a bar. 5. So far as the maintainability of the present petition is concerned, looking to the controversy involved in the matter and keeping in view the guidelines as laid down by the Hon'ble Apex Court in the matter of Whirlpool Corporation (supra) and Harbanslal (supra) this Court finds that the availability of alternative remedy would not be bar in maintaining the present petition. Accordingly, the said objection is hereby overruled. With regard to the case on merits is concerned, it is submitted by the learned counsel for the petitioner that the impugned orders passed by SDO dated 11.10.2022 and passed by Tehsildar dated 11.3.2022 are without jurisdiction and, therefore, are liable to be set aside. Accordingly, the said objection is hereby overruled. With regard to the case on merits is concerned, it is submitted by the learned counsel for the petitioner that the impugned orders passed by SDO dated 11.10.2022 and passed by Tehsildar dated 11.3.2022 are without jurisdiction and, therefore, are liable to be set aside. It was further argued that the judgment cited by the Courts below in W.P. No.6695/2023 and W.P. No.1908/2019 referred to were wrongly interpreted as those judgment pertains to the fact where the Will on the basis of which mutation was sought was disputed by the other side, but herein there was no dispute raised by any of the parties even after service of notice and on the basis of any loss that would be caused to the public exchequer the said order could not have been passed. It was further argued that both the Courts have held that since the Will cannot be adjudicated in the revenue proceedings, therefore, petitioner had to approach the Civil Court with regard to proving the genuineness of the Will which is per se illegal as the said analogy would be applicable where there is any dispute raised by any of the person having interest in right of the property, but as the said Will was not challenged by any of the parties Tehsildar was duty bound to mutate the names of the petitioners and respondents No.4 to 9 in the revenue records on the basis of the Will. 6. While placing reliance on M.P. Bhu Rajaswa Sahinta (Bhu-Abhilekhon Mein Namantran Niyam) 2018 (in short Rules of 2018) specially rule 3, it was submitted that report of rights for interest acquired in the land by a person under sub-section 1 of section 109 is required to be made by the concerned Patwari in form four in case of acquisition of right for interest on the basis of Will and form four appended to the said rules of 2018 provides for mode of acquisition of Bhumiswami rights/interest and at serial No.2 is placed, the acquisition of right by Will. Thus, under the Rules of 2018 framed in exercise of powers conferred by Clause 23 of sub-Section 2 of section 258 of MPLRC r/w section 109 and Section 110 of the said Code, Will is one of the modes by which mutation can be carried out in the revenue records. Thus, under the Rules of 2018 framed in exercise of powers conferred by Clause 23 of sub-Section 2 of section 258 of MPLRC r/w section 109 and Section 110 of the said Code, Will is one of the modes by which mutation can be carried out in the revenue records. It was also argued that only in the case where the Will is in dispute or the dispute has been raised with regard to the execution of the said Will by any of the interested parties, in such eventualities it has been held that determination of rights on the basis of the Will is not within the domain of the revenue authorities and for that the parties had to approach the competent Court of Civil jurisdiction, but since it is not the case herein, the said rejection of mutation application on the aforesaid basis was per se illegal. 7. Per Contra, Shri Khot, appearing for the State had submitted that the law with regard to mutation of names in the revenue records on the basis of the Will is very well settled. The parties approaching the revenue authorities for mutating the names in the revenue records on the basis of a Will are required to first get their rights crystallized by a competent Civil Courts and only, thereafter, the said mutation can be carried out. Thus, it was submitted that the present petition being devoid of any substance deserves to be dismissed. Heard the counsels for the parties and perused the record. 8. Admittedly, as per rules of 2018 which has been framed in exercise of the powers conferred by Clause (XXIII) sub-Section 2 of section 258 of MPLRC r/w Section 109 and 116 of the Code, Will is one of the modes by which the mutation can be carried out. Rule 3 of the rules of 2018 specifically provides for preparation of a report on the basis of which the party has acquired the rights in the property and form four appended to the rules framed under rule 3 to the said rules of 2018 at serial No.2 provides the mode of acquisition of Bhumiswami rights/interest on the basis of the Will. Thus, it is very well legally settled by the aforesaid that on the basis of Will mutation in the revenue records can be carried out. Thus, it is very well legally settled by the aforesaid that on the basis of Will mutation in the revenue records can be carried out. So far as the judgment cited by the learned Courts below that in cases of mutation in the revenue records on the basis of Will, the parties are required to get their rights crystallized by the competent civil Court is concerned, the said analogy has been laid down in the context where the Will is under dispute and any person interested in the property had disputed the very execution of the Will and in that case the revenue authorities have no jurisdiction to analyze the execution of the Will as the domain is of the Civil Court and only, thereafter, after the rights of the parties are ascertained therein the mutation can be carried out in the revenue records. 9. The factual scenario in the present case is altogether different. From bare perusal of the order passed by Tehsildar it would be evident that even after issuance of notice to the interested persons none of them had appeared to oppose the execution of the Will on the basis of which mutation was sought by the petitioner. This fact has been specifically been recorded that none of the daughters of late Shri Kailash Chandra Agarwal, the Executor of the Will, had tendered their appearance. Thus, in absence of any opposition the learned Tehsildar should have allowed the application for mutation. It is further seen from the said order that the application has been rejected on the ground that leaving the daughters, the Will has been executed in favour of wife, sons, daughter-in-law and grand son and in absence of any relinquishment deed executed by the daughters, it appears that their rights have been curtailed and also in absence of any relinquishment deed executed by them loss has also been caused to the public exchequer and on similar lines, the learned SDO had dismissed the appeal. 10. 10. To this Court, the aforesaid finding appears to be not justified as when Will is not disputed, relinquishment of any rights by any person interested in the property doesn't arise so it cannot be said that due to the fact of non-execution of relinquishment deed, public exchequer had been put to loss, thus, in absence of any opposition to the Will, the Courts below have wrongly rejected the application for mutation in the revenue records on the basis of the Will. 11. Accordingly, the present petition is allowed, the impugned orders dated 11.10.2022 and 11.3.2022 are hereby set aside and the learned Tehsildar is directed to mutate the name of the persons who are the beneficiaries as per the Will dated 12.4.2021. CC as per rules/directions.