Aslam Gani Patrawala vs Jasbeer Singh and others

Rajendra Menon, Judge

Challenging the order-dated 30.4.2010 - Annexure P/6 passed by the Board of Revenue, Gwalior (MP) reversing the concurrent findings recorded by the Collector and the Additional Commissioner in the matter of mutation of the land in question, petitioner has filed this writ petition. Dispute in this writ petition pertains to certain land bearing Khasra Nos. 66 and 71 situated in Patwari Halka No. 29, Village Sultanpur, District Raisen, MP. The land in question belonged to one Shri Usmangani Patrawala, who was staying in Bombay and as per the death certificate - Annexure P/1, Shri Usmangani Patrawala had died on 4.2.1990. Petitioner Aslam Gani Patrawala is the son of Late Shri Usmangani Patrawala and this writ petition is filed through the Attorney Holder of the petitioner, one Shri Mohammed Aamir Khan.

It is seen from the records that after death of Shri Usmangani Patrawala on 4.2.1990, respondents claimed that the land in question has been gifted to them by Shri Usmangani Patrawala through a Hibanama and on the basis of the same, it is seen that in the year 1993, the Naib Tehsildar and the Patwari of the Village Sultanpur entered the name of respondents 1 to 4 as Bhumiswami and owners of the land in the land record. The entry continued for about 13 years when after 13 years various complaints were received before the Collector and the Officers of the Economic Offences Wing, particularly by one Shri Munna Khan to the effect that Patwari and the Revenue Officers have committed various manipulation in the record, therefore, a request was made to all concerned including the Chief Minister to conduct an inquiry into the matter. Available at page 104 of the paper book, are the copies of the complaint and the memo issued by the Collector directing the Sub Divisional officer, Gauharganj (hereinafter referred to as ''SDO'') to conduct an inquiry into the matter and submit a report. Accordingly, SDO, Gauharganj conducted an inquiry and submitted a report on 8.7.2005 pointing out various irregularities committed by the revenue officers with regard to manipulation of the revenue records, particularly in Village Sultanpur.

With regard to land bearing Khasra Nos. 66 and 71, it was pointed out that on the basis of the so-called Hibanama, the name of the original owner Late Shri Usmangani Patrawala has been deleted and instead the name of respondents 1 to 4 have been entered into the revenue records on 8.12.1993 by the then Naib Tehsildar and the Patwari. In the report, it was indicated that after going through the original records with regard to mutation it is found that there is no application available for mutation with regard to item No. 56; the entry has been made merely on the basis of a Hibanama, but neither a copy of the Hibanama nor the application for mutation nor records pertaining to any proceedings conducted for transfer of the land is available. It was indicated in the report that as per Muslim Law whenever a land is transferred on the basis of a gift i.e... Hibanama, proof of the gift has to be established by leading evidence. In the present case, it was pointed out that the entries are made without there being any proof or evidence led with regard to the gift in question. Accordingly, in a detailed report dated 8.7.2005, SDO, Gauharganj communicated to the Collector that there are large scale irregularities in the mutation done, for a particular area, the statutory provision of Sections 109 and 110 have not been followed and even revenue for the State by way of stamp duty in the matter of transfer is denied. Accordingly, recommendation was made by the SDO that it is a fit case where the powers of suo motu revision u/s 50 of the MP Land Revenue Code should be exercised. The said report was placed before the Collector and alongwith the said report certain findings recorded by the Economic Offences Wing also pointing out large scale irregularities was placed before the Collector. Accordingly, vide note-sheet dated 27.7.2005 - Annexure P/15, the Collector directed for registration of a proceeding for exercising suo motu powers u/s 50 not only for affecting mutation by breach of the statutory provision of sections 109 and 110 of the MP Land Revenue Code, but also with regard to evasion of stamp duty on the alleged transfer. After registering the case on 22.7.2005, notices were issued to all concerned, inquiry was conducted and finally, it was found by the Collector after due inquiry that the mutation was ordered in an illegal manner, contrary to the statutory provision. The same is illegal and, therefore, vide order-dated 28.5.2007 - Annexure P/2, the Collector cancelled the mutation ordered on 8.12.1993 and directed for restoration of the entry as it was prior to 1993. Aggrieved by this order passed by the Collector on 28.5.2007, respondents preferred an appeal before the Additional Commissioner, Bhopal and the Additional Commissioner vide order-dated 30.9.2009 - Annexure P/3 having rejected the same and upheld the order of the Collector, revision was therefore, filed before the Board of Revenue by respondents 1 to 4, and the revision having been allowed vide order-dated 30.4.2010, petitioner has filed this writ petition challenging the order passed by the Board of Revenue.

Shri R.N. Singh, learned Senior Advocate appearing for the petitioner, took me through the findings recorded by the Collector, Additional Commissioner and the Board of Revenue; the requirement of the provisions of Section 109 read with section 110 of the MP Land Revenue Code; the death certificate of Shri Usmangani Patrawala; and, the entire material available on record and argued that in the revenue records upto the year 2003-2004, name of Shri Usmangani Patrawala was entered and, therefore, the petitioner had no occasion to have any doubt. It was only when notices were issued from the office of Collector with regard to the proceeding initiated that the petitioner was made aware of the irregularities committed. Accordingly, it is stated that the petitioner in the absence of any notice with regard to the mutation conducted on 8.12.1993, had no knowledge about the irregularities committed and the Collector and the Additional Commissioner on inquiry having found the entire mutation done to be illegal, contrary to law, based on fraudulent documents, which is not proved in accordance with law, have interfered into the matter. The concurrent finding recorded by the Collector and the Additional Commissioner is interfered with by the Board of Revenue mainly on the ground that the power of suo motu revision exercised after 13 years is unsustainable, the petitioner Shri Aslam Gani Patrawala having not taken any steps for mutation of the land in his name after death of his father on 4.2.1990, cannot now claim any benefit and in an illegal and perverse manner without appreciating the totality of the facts and circumstances and the legal questions, has interfered into the matter.

Referring to the Hibanama, available on record, and an agreement to sale produced by the respondents in the proceeding as contained in Annexure P/10 Shri R.N. Singh, learned Senior Advocate, emphasized that apart from the fact that the Hibanama was not proved in accordance to law and the requirement of the principle laid down by the Supreme Court in the case of Hafeeza Bibi and Others Vs. Shaikh Farid (dead) by L.Rs. and Others, the Board of Revenue has interfered into the matter without taking note of the fact that even the agreement for sale has been filed fraudulently and all these factors were taken note of by the Collector and the Additional Commissioner for suspecting the transaction with regard to transfer of the property by Shri Usmangani Patrawala to the respondents. It is emphasized by learned Senior Advocate that once it is found that a mutation has been affected illegally without following the statutory provisions, the exercise of suo motu power by the Collector was proper and the Board of Revenue committed serious error in interfering into the matter. Taking me through the report of the SDO dated 8.7.2005; the inquiry conducted by the Economic Offences Wing; and, the various irregularities highlighted in these orders and the statement of the Patwari, recorded in the proceedings, which goes to show that the proceedings were held in total violation of the statutory provision, Shri R.N. Singh, learned Senior Advocate, emphasized that a reasonable and concurrent finding recorded by the Collector and the Additional Commissioner has been interfered with in an illegal and arbitrary manner. Emphasizing that the Board of Revenue has unnecessarily interfered into the matter without appreciating the legal question involved and the facts in its right perspective, learned Senior Advocate prays for interference in the matter and in support of his contentions invites my attention to the following judgments:

(i) The State of Gujarat Vs. Patil Raghav Natha and Others, - to say that the power of revision must be exercised in a reasonable time and length of the reasonable time must be determined with the facts of the case and the nature of the order which is being revised.

(ii) Smt. Ushadevi and Others Vs. State of Madhya Pradesh and Others, - to contend that what should be the reasonable time for exercise of the power of suo motu revision, as held in P. Raghav (supra), must be determined with reference to the facts and circumstances of the case and the nature of the order which is being revised.

(iii) Mulayam Singh and Another Vs. Budhuwa Chamar and Others, in support of his submission that what should be the reasonable time would depend upon the fact of each particular case. In the present case as soon as the fact was brought into his notice, the Additional Collector has rightly exercised the jurisdiction u/s 50 of the Code, to set aside the mutation based on a transaction contrary to the provision of the Section 165 (7-B) of the Code. In the circumstances, it cannot be said that the jurisdiction was exercised beyond reasonable time.

(iv) Murari Lal and Others Vs. State of Madhya Pradesh and Others, - to emphasize that it is a cardinal principle of law of limitation that prescribed period (if any) of limitation starts running from the date of acquiring the knowledge of relevant facts giving rise to the cause of action.

(v) Ram Bharosi Sharma Vs. State of M.P. and Others, to say that in view of the well settled legal position with regard to limitation/time limit within which the power of review u/s 50 of the MP Land Revenue Code has to be exercised.

(vi) Jeevan Lal Vs. State of M.P. and Others, to submit that as large scale violation of statutory provision is found, principle laid down in the case of Ram Bharosi Sharma (supra) will not apply in the facts and circumstances of the present case. Case where large scale irregularities are committed and as such exercise of power of revision even though beyond the period of limitation is permissible.

(vii) Sarvan Kumar and another Vs. State of M.P. and another, - in support of his submission that time limit for exercise of suo motu revision should depend upon facts of each case. Fixing of such limit will frustrate the very purpose of giving the powers of suo motu revision and encourage the arbitrary and whimsical order with corrupt motive.

(viii) Ranveer Singh and Others Vs. State of M.P., to show that law laid down by a Full Bench with regard to exercise of suo motu powers of revision where it is envisaged that u/s 50 of the MP Land Revenue Code, power should be exercised by the Revisional Authority within 180 days from the date of knowledge of the illegality or impropriety of any order.

(ix) A.V. Papayya Sastry and Others Vs. Government of A.P. and Others, to say that it is settled proposition of law that a judgment obtained by playing fraud on the Court/Tribunal or authority is a nullity and nonest in the eyes of law. It can be challenged in any Court, at any time, in Appeal, Revision and Writ of even in Co-lateral proceedings.

(x) State of Punjab and Others Vs. Bhatinda District Coop. Milk P. Union Ltd., - to show as to what shall be the reasonable period of exercising jurisdiction would depend upon the nature of the statute, rights and liabilities there under and other relevant factors.

(xi) Savina Park Resort & Tours Private Limited Vs. State of MP, 2012 (1) MPLJ 562 - to say that in the light of the Full Bench Judgment, it is clear that a reasonable period is construed as 180 days from the date of knowledge of illegality, impropriety and irregularity. Thus, for applying the ratio of this judgment, the pivotal question is as to what is the starting point/day.

(xii) Hafiza Biwi (supra) - to contend that the position is well settled, what has been stated and restated time and again, that the three essentials of a gift under Mohammedan Law are (1) declaration of the gift by the donor; (2) acceptance of the gift by the donee; and, (3) delivery of possession.

Finally, contending that the Collector was apprised of the irregularity committed only on 8.7.2005, when the SDO, Gauharganj submitted the report and immediately within 180 days cognizance was taken by the Collector by registering the proceedings on 27.7.2005, Shri R.N. Singh - learned Senior Advocate, submits that the law laid down by the Full Bench in the case of Ranveer Singh (supra) is fully applicable and, therefore, the Board of Revenue has committed an error in interfering into the matter mainly on the ground of delay.

Shri Brian D''Silva, learned Senior Advocate, assisted by Shri Abhijeet Awasthy, learned counsel appearing for respondents 1 to 4, refuted the aforesaid and emphasized that u/s 50 of the MP Land Revenue Code, the power of suo motu revision cannot be exercised by the Collector for interfering into the mutation done in the revenue records pertaining to private land and a private dispute between persons when no government interest is involved. It is emphasized that if the petitioner was aggrieved by the order passed on 8.12.1993, then in accordance to the provision to section 50 of the Code, petitioner should have filed an appeal and as a remedy of appeal was available to the petitioner, exercise of suo motu powers of revision is unsustainable. It was thereafter argued that in the present case the proceedings were initiated to find out evasion of stamp duty in the transaction and instead of adjudicating the dispute with regard to evasion of stamp duty, the misuse of suo motu powers for annulling the mutation done is unsustainable. It was argued at length by learned counsel for the respondents that the suo motu powers of revision is exercised by the Collector based on the report and evidence collected behind their back, without grant of opportunity to them to rebut the same, without giving them any proper opportunity of defence and, therefore, the entire action is unsustainable. It is stated that in the original notice issued and in the order passed by the Collector there is no finding of fraud and as the proceedings initiated for evasion of stamp duty has been converted into a proceedings akin to an appeal against the order of mutation, the authorities have acted in excess of their jurisdiction. Certain objections were also raised with regard to the right of the attorney holder to file the petitioner on behalf of the present petitioner, particularly by contending that the petitioner having not objected from 1990 upto 2005 and even before the Collector when the proceedings were held, it is stated that the petition is liable to be dismissed.

Finally, it was argued by learned Senior Counsel for the respondents that the Hibanama and the documents available on record do prove that Late Usmangani Patrawala had gifted the property to respondents 1 to 4, who have got the land mutated and have been in possession of the land since then, the Collector and the Additional Commissioner have interfered into the matter in an illegal manner, which is rightly interfered with by the Board of Revenue. Accordingly, emphasizing that in the facts and circumstances of the case, the interference prayed for is not sustainable, learned Senior Advocate prays for dismissal of the writ petition.

Shri S.M. Lal, learned Government Advocate appearing for the State, referring to the return filed by the State points out that as the mutation in question ordered on 8.12.1993 is in total violation and disregard to the statutory provision as contained in section 109 read with section 110 of the Code, the interference made in the matter is proper and no case was made out for interference by the Board of Revenue and in upsetting the concurrent findings recorded by the Collector and the Additional Commissioner, the Board of Revenue has committed an error.

I have heard learned counsel for the parties at length and perused the records.

As far as the factual aspect of the matter is concerned, there is no dispute. On the basis of certain complaints and report received, the Collector and the authorities of the Economic Offences Wing directed for a detailed inquiry, in which the irregularities as has been highlighted by the Collector in his order-dated 28.5.2007 have come to light. The irregularities found are that the transfer/mutation is made without following the procedure contemplated under sections 109 and 110 of the Code. No advertisement was issued, no notice was displayed, no objections were called for and even in the record the application for mutation was not available. It was further found that even though the mutation was ordered on the basis of a Hibanama, even a copy of the Hibanama in its original or otherwise was not available. It was also found that the proceedings were held against Shri Usmangani Patrawala in the year 1993 whereas Shri Usmangani Patrawala had already died on 4.2.1990. It was also found that in his statement given, Patwari Gangaram admitted the illegality committed and pointed out that he was compelled to make the entry because the then Naib Tehsildar, one Shri Mishra, compelled him to do the same. It was also found in the inquiry that for the transaction done both the Patwari and the Naib Tehsildar have been granted undue benefit by the private respondents. The question now would be as to whether the aforesaid finding recorded in the inquiry and the action taken by the Collector for undoing the illegality by exercising the powers of suo motu revision u/s 50 of the Code should be interfered with by this Court by upholding the order passed by the Board of Revenue. That being so, it may be appropriate to take note of the order passed by the Board of Revenue, the reasons and factors which weighed with the Board of Revenue for interfering in the matter.

In paragraph 3 of the order passed on 30.4.2010, after evaluating the circumstances and the pleadings of the parties, the Collector has held that the following four points were canvassed before him:

(i) Whether the Collector was right in exercising the powers of suo motu revision in the matter of a private land after a period of 13 years?

(ii) Whether the Collector after having initiated proceedings for evasion of stamp duty was right in passing the impugned order?

(iii) When the mutation done on the basis of Hibanama could be challenged by way of an appeal, whether exercise of powers of suo motu revision was proper?

(iv) Whether a Hibanama executed as per the Muslim Law could be undone in the manner as done by the Collector without getting a decree from a Court of competent jurisdiction, for cancellation of the Hibanama and challenge to it in accordance with law.

Even though it was held that the aforesaid four points emerge from the argument and the order of the Collector, but while formulating the questions and issues before him. In paragraph 5, two issues were framed by the Commissioner vide paragraph 5.1 and 5.2 and the same in Hindi reads as under:

Considering the totality of the facts and circumstances and the question involved in the writ petition as canvassed by the parties, it is seen that for considering tenability of the order passed by the Board of Revenue, the first question to be considered is as to what is the law governing the period of limitation for exercising the suo motu powers of revision by the competent authority u/s 50 of the Code and a related question on the basis of the objection raised by the respondents is as to whether in cases involving transfer of private land, such a power can be exercised?

Section 50 of the Code, contemplates a provision for revision and according to the said provision the Board of Revenue or the Commissioner/Settlement Commissioner or the Collector or the Settlement Officer at any time on his own motion or on an application made by the party for the purpose of satisfying itself or himself with regard to the legality or propriety or any order passed by or as to regularity or a proceeding of a Revenue Officer subordinate to it or him is entitled to examine the record and dispose of the matter by passing such orders as it deems fit. This power of revision is available to the Collector and the power can be exercised at any point of time on the Collector being satisfied with regard to the legality or propriety of the order passed by any revenue officer subordinate to him. Admittedly, the Naib Tehsildar, who had passed the order of mutation on 8.12.1993 is a revenue officer subordinate to the Collector and, therefore, the Collector is entitled to exercise the power of revision. As the section in question does not prescribe any time limit instead it speaks about the power to be exercised at any time, the question would be as to what is the reasonable time for exercising this power of suo motu revision.

In the case of Patil Raghav Natha (supra) relied upon by Shri R.N. Singh, learned Senior Advocate, in paragraphs 11 and 12, the Supreme Court has laid down the principle that the power for revision must be exercised within a reasonable period of time and the reasonableness of the time is to be determined with regard to the facts and circumstances of each case and the nature of the order which is to be passed. A Full Bench of this Court in the case of Usha Devi (supra) while considering the question of exercise of power of revision u/s 42 of the MP Ceiling on Agricultural Holdings Act, has also laid down similar principle after following the law laid down in the case of Patil Raghav Natha (supra). Thereafter, in most of the cases relied upon by Shri R.N. Singh in this regard and as is detailed hereinabove, the same principle is reiterated.

Finally, the question is now settled by a Full Bench of this Court in the case of Ranveer Singh (supra). The Full Bench in paragraph 38 has laid down the following principle:

"38. Ab judicatio for the reasons stated hereinabove, we hereby answer the question referred to us as under:-

The suo motu powers can be exercised by the Revisional Authority envisaged u/s 50 of the Code within a period of 180 days from the date of the knowledge of illegality, impropriety and irregularity of the proceedings committed by any Revenue Officer subordinate to it even if the immovable property is Government land or having some public interest. What should be the irreparable loss, it should be considered on the facts and circumstances of each case as no definite yardstick in that regard can be drawn. We have already mentioned hereinabove certain instances which can be said to be the ''irreparable loss''.

(Emphasis Supplied)"

This judgment rendered by the Full Bench is followed in the case of Savina Park Resorts and Tours Private Limited (supra) relied upon by Shri R.N. Singh, learned Senior Advocate. Therefore, now it can safely be construed that the power of suo motu revision available to a competent authority u/s 50 of the code can be exercised within a period of 180 days from the date on which the knowledge of illegality, impropriety or irregularity with regard to the proceeding committed by the Revenue Officer subordinate to him comes to the knowledge of the revisional authority.

Admittedly, in the present case if the aforesaid principle is applied, it would be seen that the mutation was ordered on 8.12.1993 and the power of Revision was exercised by the Collector by registering proceedings on 27.7.2005 as is evident from Annexure P/15. From the facts that have come on record it is clear that when a complaint was filed by Munna Khan to various authorities, the Collector directed the SDO, Gauharganj to conduct an inquiry. Similarly, the authorities of the Economic Offences Wing also conducted an inquiry and it was for the first time on 8.7.2005 when the report was submitted by the SDO, Gauharganj that the illegality, impropriety or irregularity committed by the Revenue Officers in the matter of mutation came to the notice of the Collector. The Collector received the report on 8.7.2005 and within 180 days thereof he took cognizance, registered the proceedings on 27.7.2005 and initiated the process which culminated in passing of the order on 28.5.2007 - Annexure P/2. Accordingly, the crucial dates for determining the question of limitation would be 8.7.2005, when the illegality came to the notice of the revisional authority; and, 27.7.2005, when the Collector took cognizance of the illegality and initiated the proceedings. It is, therefore, a case where within the period of 180 days of acquiring knowledge about the illegality the revisional authority initiated the proceedings. Accordingly, in the light of the principle laid down in the cases as referred to hereinabove, particularly by the Full Bench in the case of Ranveer Singh (supra), the Collector has not committed any error in registering the proceedings and exercising the power of suo motu revision and the Board of Revenue in holding that the powers of suo motu revision has been exercised after an inordinate delay of 13 years and in interfering with the matter on such ground has committed a grave illegality. In holding that the powers of suo motu revision could not be exercised after a period of 13 years, the Board of Revenue has committed grave error and the findings and the law laid down by Board of Revenue in this regard being contrary to the principle laid down by the Full Bench in the case of Ranveer Singh (supra), cannot be upheld. To that effect, the order passed by the Board of Revenue is unsustainable.

Having held so, the first objection of Shri Brian D''Silva, with regard to the jurisdiction of the Collector in exercising the powers of suo motu revision when a right to appeal is available to the petitioner has to be taken note of. Substantive proviso of Section 50 of the Code, as indicated hereinabove, does give the Collector right to exercise the powers of suo motu revision if he is satisfied that an irregularity or illegality has been committed by a Revenue Officer subordinate to him in a revenue proceedings held. However, the proviso to this substantive provision contemplates that no application for revision shall be entertained against an order appealable under this Code. This proviso means that if an order is appealable then against an order against which an appeal lies no application or revision u/s 50 is maintainable. Sub-clause (i) of the proviso does not mean that in all cases where an appeal is provided the powers of suo motu revision cannot be exercised. The proviso means that if an appeal is provided against an act, an application for revision u/s 50 cannot be failed by the aggrieved person. The aggrieved person has to take recourse to the remedy of appeal u/s 44. However, the proviso does not relate to exercise of suo motu powers of revision by the revisional authority, infact it refers to the right available to an aggrieved person to file an application for revision and not the right of the revisional authority to exercise suo motu powers. Accordingly, on the ground that against the order impugned as an appeal is maintainable, the power of suo motu revision cannot be exercised, the petition cannot be dismissed. This contention of Shri Brian D''Silva, learned Senior Advocate, is misconceived and is not in accordance to the provisions of the section i.e.... Section 50.

As far as the contention with regard to the petitioner having not taken recourse to the remedy available of filing an appeal and challenging the order-dated 8.12.1993 and the finding recorded by the Board of Revenue that the petitioner Shri Aslam Gani Patrawala did not take any action for getting the land mutated in his name after death of his father is concerned, this is also a perverse finding. From the pleadings and material available on record and the Khasra entries filed as Annexure P/6, it is clear that even in the Khasra entry in the year 2003- 2004 in Column No. (3), owner of the land is shown as Shri Usman Gani Patrawala and it is the case of the petitioner that they were all along under the impression that the land is entered in the name of his father and it was only when he received information from the office of Collector with regard to the proceedings initiated that he came to know about the illegal mutation. That being so, merely because the petitioner did not take any action or steps for challenging the order-dated 8.12.1993, the petition cannot be dismissed. The petitioner has given reasonable justification for the silence and inaction on his part and there is much force in his contention that he was not aware of the proceedings conducted by respondents 1 to 4, with the help of the revenue authorities in getting the land mutated in their name. In the absence of the petitioner having adequate knowledge about the illegality committed, it is not expected of him to challenge or take action, records indicate that he has been effectively taking steps to adjudicate the matter before all the authorities concerned once he acquired knowledge of the illegality. Accordingly, the grounds in this regard canvassed by Shri Brian D''Silva, learned Senior Advocate, cannot be accepted.

It was thereafter argued by Shri Brian D''Silva that the proceedings were initiated for the purpose of assessing stamp duty and in the said proceedings there was no necessity for going into the question of mutation. This contention of the learned Senior Advocate is wholly misconceived. Apart from the fact that in the notice issued for initiating suo motu powers of revision, there is a mention about the illegality committed in conducting the mutation u/s 109 read with section 110 of the Code, in the order passed by the Collector on 27.7.2005 taking cognizance of the matter after he received the report from SDO, Gauharganj and while issuing notice to all concerned, it is recorded by the Collector that after going through the report dated 8.7.2005, it is prima facie established that in mutating the land in the name of Shri Narendra Singh, Shri Nanak Singh, Shri Balwant Singh and Shri Jasbeer Singh, apart from depriving revenue by way of stamp duty to the State, the mutation has been done in total disregard to and in violation to the provisions of sections 109 read with 110 of the Code and, therefore, it is a fit case where the powers of suo motu revision should be exercised. It is, therefore, clear that the proceedings were registered by the Collector not only for violation of stamp duty, but also on the ground of breach of the statutory provision of sections 109 and 110 of the Code, in conducting the mutation proceedings. Accordingly, on this count also the respondents cannot seek any benefit.

Finally Shri Brian D''Silva, learned Senior Advocate, tried to argue that the entire action is taken without granting proper opportunity to the respondents; the statement of Patwari Gangaram was recorded behind their back; and, as the proceedings were held behind the back of the respondents, it is stated that the entire order and action is unsustainable. This argument of the learned Senior Advocate appearing for the respondents cannot be accepted. From the proceedings and ordersheets with regard to the matter as is evident from Annexure P/15, it is seen that on 27.7.2005, after directing for registration of the proceedings u/s 50, notices were issued to the Tehsildar, the concerned Patwari and after they appeared alongwith the record, on scrutiny of the record notices were issued not only to respondents 1 to 4 but also the original owner Shri Usman Gani Patrawala; and, when these notices were issued all the respondents appeared through their counsel one Shri Sharma and the proceedings held before the Collector on 27.7.2006, 8.2.2007, 12.3.2007 and even thereafter indicates that throughout the proceedings respondents were represented by their counsel one Shri Sharma. Initially Shri Sharma raised a preliminary objection with regard to maintainability of the proceedings i.e... on the ground that the proceedings are only for evasion of stamp duty. The Collector held that the preliminary objection shall be decided alongwith the matter on merits and thereafter the respondents were directed to file their objections and lead evidence in their defence. It is seen from the record that inspite of repeated opportunities being granted neither any evidence was led nor any prayer made for examining any witness. Even statement of one Patwari was recorded when the respondents were present on 27.7.2005 and at that point of time no prayer was made for summoning the earlier Patwari or cross-examining him. It is a case where the respondents were aware of the proceedings being held and inspite of opportunities being granted they did not raise any objection with regard to grant of opportunity nor sought for any such opportunity. That being so, it cannot be said that proper opportunity was not granted to the respondents for defending themselves.

That apart, the moot question involved in this writ petition is as to whether mutation in question ordered on the basis of Hibanama on 8.12.1993 is in accordance to the requirement of law. Before this Court and even before the proceedings held in the Board of Revenue so also before the Collector and the Additional Commissioner, it was never the case of the respondents that the mutation ordered is in accordance to the requirement of law. A detailed procedure is laid down in section 109 and section 110 of the Code for conducting mutation. The mutation has to be conducted after following the procedure laid down. In the present case, none of the procedures were followed. From the report submitted by SDO, Gauharganj, it is clear that even the application for mutation and the original copy of the Hibanama is not available on record, no objections were called for and on the date when the original owner Shri Usman Gani Patrawala had died, proceedings were held against a dead person without notice to him and the mutation ordered. Respondents are unable to demonstrate before this Court as to how and in what manner the mutation was ordered on 8.12.1993 is legal and proper; what is the procedure that was followed; when was the advertisement made and objections invited; how the objections were considered; how and in what manner the Hibanama was proved; and, what is the procedure followed for ordering the mutation. In the absence of enough material being available to show that the mutation ordered on 8.12.1993 was after following the due procedure as contemplated under law, this Court does not find any error in the order passed by the Collector and affirmed by the Additional Commissioner holding the mutation to be illegal, the same being in total disregard to the statutory provisions. Before this Court also respondents are unable to demonstrate as to how they say the mutation to be proper. Accordingly, it is a case where in total disregard to the prescribed statutory norms and procedure, mutation is ordered by the revenue authorities and on being informed about the irregularity committed, the revisional authorities have exercised the power available to them under law and have taken action. In doing so, they have not committed any error and the Board of Revenue without appreciating all these factors, without considering the legal question in its right perspective, has interfered in the matter in a totally uncalled for manner, which cannot be upheld by this Court.

It is also surprising to note that respondents claim their right to the property on the basis of a Hibanama. When a property is gifted under the Muslim Law, transfer of property by gift is permissible by even an oral gift without anything being in writing. But, a gift has to be proved by establishing three essential factors: (i) declaration of gift by the donor; (ii) acceptance of the gift by the donee; and, (iii) delivery of possession. In the present case, there is no evidence to show the execution of the Hibanama, by following the aforesaid three procedural aspects of the matter. This could be done only if the Hibanama is proved in accordance with law i.e.... the declaration and intention of the donor, acceptance of the donee, and delivery of possession proved in accordance with law. No evidence having been led to prove the Hibanama and the procedure followed for gifting and even the original Hibanama being not available on record, the entire transaction seems to be doubtful and, therefore, in interfering with the matter the Collector and the Additional Commissioner have not committed any error. That apart, the respondents'' conduct in introducing a sale-deed when the proceedings were pending casts a serious cloud over their entire conduct. If the respondents were raising their claim on the basis of a Hibanama, it is not known as to why an agreement for sale was brought on record. The agreement for sale - Annexure P/10 is dated 12.4.1979 and if there was already an agreement of sale, it is not known as to why a Hibanama is executed on 28.4.1980. All these aspects have been considered by the Additional Commissioner and a decision taken. These reasonable finding recorded by the two revenue authorities has been unnecessarily interfered with by the Board of Revenue and in doing so, I am of the considered view that the Board of Revenue has committed grave irregularity.

When the law contemplates that a particular thing has to be done in a particular manner and when a procedure for doing that particular thing is laid down in a mandatory statutory form - for example section 109 and section 110 of the MP Land Revenue Code in the present case, the mutation in question should have been done in accordance to the said provision and if the mutation is done in total disregard to the statutory and mandatory provision, this Court cannot close its eyes and perpetuate an illegality. That being so, the Collector and the Additional Commissioner have not committed any illegality in setting aside an illegal procedure followed for mutation and the Board of Revenue while interfering with these reasonable orders has dealt with the matter in a casual way without appreciating the legal and factual aspects in its right perspective.

Accordingly, it is a fit case where the order passed by the Board of Revenue, which is found to be wholly perverse, illegal, contrary to law and is, therefore, illegal, should be set aside/quashed.

In view of the above, this petition is allowed. Impugned order-dated 30.4.2010 - Annexure P/6 passed by the Board of Revenue is quashed and the orders passed by the Collector and the Additional Commissioner are restored. Petition stands allowed and disposed of. No order as to costs.