Arun Mohan vs Smt. Geeta Patel

Sanjay Yadav, J.

Heard.

This petition under Article 226/ 227 of the Constitution of India is directed against order dated 6.7.2004 passed by Administrative member, Board of Revenue, Gwalior in Revenue Case No. 832-1/2004; whereby, while allowing the revision filed by respondent No. 1, Board of Revenue, set aside the order dated 26.9.2001 passed by Tahsildar, Bhopal in Case No. , which was a proceeding for mutation. The crucial question, which crops up for consideration is as to whether a person who was not a party in a mutation proceeding could invoke revisional power of Board of Revenue u/s 50 of Madhya Pradesh Land Revenue Code, 1959 (hereafter shall be referred to as Code 1959), more particularly, when the order is appealable u/s 44 of Code 1959. Sub-section (1) of Section 50 stipulates:

Revision.- (1) The Board or the Commissioner or the Settlement Commissioner or the Collector or the Settlement Officer may at any time on its/his motion or on the application made by any party for the purpose of satisfying itself/himself as to legality or propriety of any order passed by or as to the regularity of the proceedings of any Revenue Officer subordinate to it/him call for, and examine the record of any case pending before, or disposed of by such officer, and may pass such order in reference thereto as it/he thinks fit:

Provided that-

(i) no application for revision shall be entertained-

(a) against an order appealable under this Code;

(b) against an order of the Settlement Commissioner u/s 210;

(c) against an order passed in revision by the Commissioner or the Settlement Commissioner in respect of cases u/s 170B, nor shall apply such order be revised by the Board on its own motion;

(ii) no such application shall be entertained unless presented within sixty days to the Commissioner or the Settlement Commissioner or the Collector or the Settlement Officer, as the case may be, or within ninety days to the Board of Revenue from the date of the order and in computing the period aforesaid, time requisite for obtaining a copy of the said order shall be excluded;

(iii) no order shall be varied or reversed in revision unless notice has been served on the parties interested and opportunity given to them of being heard.

In the case at hand proceedings were brought by Bhagwati Bai, Savitri Bai, Jairam Yadav, Hari Kishore Sharma and Sushila Sharma against Gitarani Ghosh and 14 others in respect of mutation of name in record of rights in respect of Khasra No. 2, village Choona Bhatti, Tahsil Huzur, district Bhopal. The application was allowed by order dated 26.9.2001. Petitioners herein were non-applicants No. 10 and 1 respectively in the said proceedings which formed subject matter of Case No. .

Against said order Dr. Kaushal Mishra, who was non-applicant No. 8, preferred appeal before the Sub Divisional Officer u/s 44 of Code, 1959.

Approximately after 3 years of the passing of the order dated 26.9.2001, the petitioners on 5.7.2004 filed a Revision Petition u/s 50 of Code, 1959 before Board of Revenue; wherein except State of Madhya Pradesh through Tahsildar, Rajdhani Pariyojna, Bhopal no other persons who were parties in the Case No. were impleaded as party. The Board of Revenue vide impugned order dated 6.7.2004, set aside the order dated 26.9.2001 and remitted the matter with a direction to Tahsildar, Huzur to decide the matter afresh after affording an opportunity of hearing to all the parties concerned.

Petitioners challenge the order on the ground that respondent No. 1 at whose instance the impugned order was passed not a party to the proceeding in case No. , as such being not a ''person aggrieved'' a revision petition was not tenable at her instance. It is further contended that since against the order passed by Tahsildar, an appeal lies u/s 44 there was specific bar as per proviso (i) (a) of sub-section (1) of Section 50 of Code 1959 as to maintainability of are vision. It is further contended that the application seeking revision was filed after 3 years, i.e., much beyond the prescribed period which is 60 days without an application for condonation of delay. On these three counts the petitioners seek quashment of impugned order dated 6.7.2004.

Respondent No. 1, on its turn supports the order passed by Board of Revenue and submits that being a bona fide purchaser of property she was a necessary party before Tahsildar before whom the mutation proceedings were pending culminating into an order dated 26.9.2001. It is urged that it was within her right to question the order passed by Tahsildar u/s 50 of Code, 1959.

Persons at whose instance the mutation proceedings were initiated by Tahsildar have also joined the respondent No. 1 by intervening in the matter. It is urged that in respect of the property in question the matter is pending adjudication in the competent court of jurisdiction of title of the suit land as well as the lands purchased by purchasers from the power of attorney holder who was not authorized to sell any land in Khasra No. 2 of village Choonabhatti. It is contended that the petitioners had purchased property from one Rajendra Kumar Shrivastava, power of attorney holder, who though was not holding the power of attorney in respect of land bearing Khasra No. 2, had sold the property situated over Khasra No. 2, which was without any lawful authority.

It is urged that since no right, title or interest confers on the petitioners on the basis of the sale-deed executed by power of attorney holder without there being any specific authority in respect of the land in question, the petitioners have no say in the matter.

Be that as it may. It is not the issue in the present case as to whether the transfer in favour of the petitioner herein by Rajendra Kumar Shrivastava was valid. The question which crops up for consideration is as to whether a revision petition before the Board of Revenue would lie at the instance of a person who is not a party, against an order, where against an appeal lies and whether revision could have been entertained after the expiry of the limitation as prescribed under sub-section (1) of Section 50 of Code 1959 without an application for condonation of delay.

In respect of first issue as to whether a person who is not a party in a proceeding could be said to be a person aggrieved u/s 50 of Code, 1959 is no more res integra and has been settled at rest by Division Bench of this Court in Phool Singh Vs. Collector, Vidisha and Others, wherein while dwelling upon the provision of Section 51 of the M.B. Land Revenue and Tenancy Act, 1950 it was said "4.... That being so, we must go by the normal judicial concept of a person aggrieved by an order as postulating that the person was a party to the proceedings in which the order was passed. Abdul Karim Khan and Others Vs. Municipal Committee, Raipur, . Since the Baldwan Singh Kamoda and Kunja were not in that sense persons aggrieved by the orders passed by the Tahsildar u/s 51 of the Act, they had no right of appeal and the orders passed by the Collector, the Commissioner and the Board of Revenue cannot be sustained."

Similarly in Devi Prasad and others Vs. Nekse and others, , a Division Bench of this Court held "10.... Apparently, therefore, non-petitioner No. 1 not being a party to the proceedings could not be said to be a person aggrieved and, therefore, cannot file a review or revision application against the order...."

In view of these decisions there remains no doubt that a ''person aggrieved'' to invoke the revisional power u/s 50 of the Code 1959 would be a person who is party to the proceeding. In view whereof the first question has to be answered in favour of the petitioner that the respondent No. 1 had no locus standi to maintain the revision petition u/s 50 of the Code, 1959.

The second issue as to whether it was lawful for revisional authority to have entertained an application u/s 50 of the Code 1959 against an order dated 26.9.2001, which admittedly was an appealable order u/s 44 of the Code, 1959.

Clause (a) of sub-section (1) of Section 50 of the Code, 1959 stipulates that:

(i) no application for revision shall be entertained-

(a) against an order appealable under this Code;

Sub-section (1) of Section 44 of Code, 1959 provides that an appeal shall He from every original order under the Code if such order is passed by any Revenue Officer subordinate to Sub Divisional Officer, whether or not the officer passing the order is invested with the powers of the Collector to the Sub Divisional Officer. [Section 44(1)(a)].

In the case at hand order dated 26.9.2001 was passed by Tahsildar and as per Section 44(1)(a) appeal lies before Sub Divisional Officer; in view whereof the Board of Revenue was not justified in entertaining revision petition against the order dated 26.9.2001. Thus, entertainment of revision petition beside there being a bar was a nullity in the eyes of law when it is said it is not entertainable.

In this context reference can be had of a decision in Hiralal Thakurdas Chowkse Vs. Hate Singh Laxman Singh, wherein it is observed:

The difficulty arises on account of sub-section (2) of the section 12 which not only declares the prohibited transaction of loan to be absolutely null and void but also prohibits any Court to entertain any application or suit to enforce any claim of lender of money arising out of prohibited transaction of loan. Plainly read, it would mean that if by a suit or application any claim under a prohibited transaction of loan is sought to be enforced, such suit or application shall not be entertained by the Court. It means that whenever any application or suit involves a claim based on any prohibited transaction of loan, the application or suit must be rejected. The use of the word ''entertain'' in sub-section (2) of section 12 of the Adhiniyam is significant. As pointed out by a Division Bench of this Court in Khatumal Ghanshamdas Vs. Abdul Qadir Jamaluddin and Others, , the word ''entertain'' means ''to receive and take into consideration''. It was pointed out that the plain reading of the expression ''no Court shall entertain" would mean that no Civil Court shall have jurisdiction to a suit in its inception. Thus, when the application or suit filed before the Civil Court itself discloses that the claim laid therein arises out of a prohibited transaction of loan, that application or suit shall not be considered and shall have to be rejected....

In view whereof since there is a specific bar stipulated under clause (a) proviso one sub-section (1) of Section 50, it was beyond the jurisdiction of Board of Revenue to have entertained revision petition against an order where against appeal u/s 44 lies. On this count also the impugned order deserves to be quashed.

Thirdly, clause (ii) of proviso to sub section (1) of Section 50 stipulates that no application u/s 50 shall be entertained unless presented within 60 days, Commissioner or the Settlement Commissioner or the Collector or the Settlement Officer as the case may be or within ninety days to the Board of Revenue from the date of the order and in computing the period aforesaid, time requisite for obtaining a copy of the said order shall be excluded, it would have been appropriate for the Board of Revenue to have dismissed the revision petition which was filed much beyond the period of limitation prescribed under the aforesaid clause.

As apparent from the application u/s 50, the same was filed on 5.4.2004 which was after a period of approximately three years from the date of order dated 26.9.2001. Apparently there is no application for condonation of delay either filed by respondent No. 1. In view whereof also the order deserves to be quashed.

Having thus considered there being substantial force in the petition, the impugned order dated 6.4.2007 deserves to be and is hereby quashed being not tenable in the eyes of law. Respondent No. 1 and intervener, however, cannot be left without a remedy. Therefore, they would be at liberty to prosecute the respective cases filed by them seeking declaration of title and other relief before the competent court of jurisdiction. This order, however, will not be a precedent in respect of claim put-forth by the interveners in the said proceedings. Respondent No. 1, if law permits, is also at liberty to take recourse to the same seeking redressal of grievance qua the land allegedly belongs to her.

The petition is thus disposed of finally in above terms.