Chandan Singh & Another vs State of Madhya Pradesh & Others

The petitioners have filed this writ petition challenging the order dated 29.10.2011 passed by the Sub-Divisional Officer, Ashoknagar (MP).

It is not in dispute that earlier the petitioners had preferred a revision before the Collector against the said order dated 29.10.2011. Collector had dismissed the revision as not maintainable and thereafter the petitioners had filed second revision before the Board of Revenue under Section 50 of the Land Revenue Code, 1959 and the Board of Revenue by referring to the provisions as contained in Madhya Pradesh Samaj Ke Kamzor Vargon Ke Krishi Bhumi Dharkon Ka Udhar Dene Walon Ke Bhumi

Hadapne Sambandhi Kuchakron se Paritran Tatha Mukti Adhiniyam, 1976 (hereinafter for short referred to "Adhiniyam of 1976"), which is a self-contained Act, held that a remedy of appeal is provided under Section 8 of Adhiniyam of 1976. This order of Board of Revenue was challenged by the petitioner by filing a writ petition before this Court under Article 227 of the Constitution of India and vide order dated 05.08.2016 passed in WP No.5248/2016 (Chandan Singh & Another vs. Mantulal (dead) through L.Rs. & Others, this High Court was pleased to dismiss the writ petition. Now the petitioner has filed the writ petition under Article 226 of the Constitution of India assailing the order of the Sub-Divisional Officer dated 29.10.2011, which has been subject- matter of revision before the Collector, thereafter second revision before the Board of Revenue and writ under Article 227 of the Constitution of India in WP No.5248/2016.

Shri S.P. Jain, learned counsel for respondent no.3 submits that such writ petition is not maintainable and is liable to be dismissed inasmuch as once the writ petition filed under Article 227 of the Constitution of India had already adjudicated the issue, then there is no scope of filing a fresh writ petition under Article 226 of the Constitution of India on the same subject-matter.

Reliance has been placed on the judgment of the Hon''ble Supreme Court in the case of Radhey Shyam & Another v. Chhabi Nath & Others as reported in

(2015) 5 SCC 423, wherein the Hon''ble Supreme Court has been pleased to hold that the challenge to judicial orders could lie by way of statutory appeal or revision or under Article 227 of the Constitution of India, but not by way of a writ under Articles 226 or 32 of the Constitution of India.

Similarly reliance has been placed on the judgment of the Hon''ble Supreme Court in the case of Shalini Shyam Shetty & Another v. Rajendra Shankar Patil as reported in 2010 (4) MPLJ 590, wherein it has been held that the jurisdiction under Article 227 of the Constitution of India, on the other hand, is not original nor is it appeal. This jurisdiction of superintendence under Article 227 of the Constitution of India is for both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227of the Constitution of India are separate and distinct and operate in different fields.

Learned counsel for the petitioners, on the other hand, submits that the writ is maintainable and has placed reliance on the judgment of this Court in the case of Gajraj Singh v. Jagdish & Others as reported in 2011 (4) MPHT 277, wherein the writ petition against the orders of the Collector was dismissed, but the judgment in the case of Gajraj Singh (supra) is not on the issue of maintainability of the writ petition under Article 226 of the Constitution of India despite dismissal of

a writ of petition under Article 227 of the Constitution of India.

Therefore, in the opinion of this Court in the light of the law laid down in the case of Radhey Shyam (supra), this petition under Article 226 of the Constitution of India is not maintainable to assail the order which has already attained finality in WP No.5248/2016 (Chandan Singh & Another vs. Mantulal (dead) through L.Rs. & Others. Even the liberty, which has been granted by the writ Court in WP No.5248/2016, is only confined to raising the issue of maintainability of the proceedings at the appellate stage and liberty was not in regard to filing of a writ petition under Article 226 of the Constitution of India. Thus, this writ petition being devoid of merit deserves to be dismissed and is hereby dismissed as such.