Daryavsingh vs Beenu And Others

Subodh Abhyankar, J

Heard finally, with the consent of the parties.

2] This petition has been filed by the petitioner under Article 227 of the Constitution of India, against the order dated 24.01.2024, passed in Case No.6162/2018, by the Board of Revenue, whereby, the petitioner’s application filed under Section 35(2) of the M.P. Land Revenue Code, 1959 (hereinafter referred to as the ‘Code of 1959’) has been rejected, holding the same to be not maintainable.

3] In brief, the facts of the case are that a revision No.4230 PBR/2014 was filed by Dariyav Singh (now dead) , under Section 50(1) of the Code of 1959, in which, the respondents were already served, and in the aforesaid proceedings, as the petitioner Dariyav Singh died on 10.09.2018, and the respondent no.3 Geetabai also died on 22.07.2017, their legal representatives were to be brought on record, however, on 16.10.2018, when the matter was fixed before the Board of Revenue, counsel for the petitioner could not mark his appearance before the lunch hours, and thus, the case was dismissed as abated, as the Board of Revenue was already informed that the petitioner Dariyav Singh has died and his LRs were to be brought on record. Immediately on the next day i.e., on 17.10.2018, an application under Section 35(3) of the Code of 1959 was filed by the counsel for the petitioner. The aforesaid application has been rejected by the Board of Revenue vide the impugned order dated 24.01.2024 i.e., after a period of around five years, holding that against an order of abatement, the application under Section 35(2) of the Code of 1959 was not maintainable, and the petitioner ought to have filed an application under Section 51 of the Code, which provides for review of the order.

4] Counsel for the petitioner has submitted that a bare perusal of the application for restoration would also reveal that the sum and substance of the application was for review of the order dated 16.10.2018, and thus, the Board of Revenue could have considered the aforesaid application filed under Section 35(2) of the Code of 1959 as a review petition under Section 51 of the Code of 1959. Thus, it is submitted that the impugned order be set aside.

5] Counsel for the respondents/State submits that the Board of Revenue has the power to review any matter suo motu also.

6] Heard. In view of the aforesaid submissions and on perusal of the record, it is found that it has taken around five years for the Board of Revenue to decide the question involving rejection of an application for restoration of a case, the application for which was filed only after one day of its rejection. It is apparent that the Board of Revenue has held that the since the rejection of revision of the petitioner was on account of death of the petitioner himself, hence Section 35(3) of the Code of 1959 would not be applicable and in fact, an application for review under Section 51 ought to have been filed. In the considered opinion of this Court, so far as the powers to review as provided under Section 51 of the Code of 1959 are concerned, the same read as under:-

“51. Review of orders - (1) The Board or any Revenue Officer may, either suo motu or on an application of any party interested, review any order passed by it or him, or by any predecessor-in- office and pass such order in reference thereto as it or he may think fit: Provided that-

(i) if the Commissioner, Collector or District Survey Officer thinks it necessary to review any order which he has not himself passed, he shall first obtain the sanction of the Board, and if an officer subordinate to the Collector or District Survey Officer proposes to review an order, whether passed by himself or his predecessor, he shall first obtain the sanction in writing of the Collector or District Survey Officer to whom he is immediate subordinate;

(ii) no order shall be varied or reversed unless notice has been given to the parties interested to appear and be heard in support of such order;

(iii) no order from which an appeal has been made, or which is the subject of any revision proceedings shall, so long as such appeal or proceeding are pending, be reviewed;

(iv) no order affecting any question of right between private persons shall be reviewed except on the application of a party to the proceedings, and no application for the review of such order shall be entertained unless it is made within forty-five days from the passing of the order.

(2) No order shall be reviewed except on the following grounds, namely:-

(a) discovery of new and important matter or evidence, which after the exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when the order was made;

(b) some mistake or error apparent on the face of the record; or

(c) any other sufficient reason.]

(3) For the purposes of this section the Collector shall be deemed to be successor in office of any Revenue Officer who has left the district or who has ceased to exercise powers as a Revenue Officer and to whom there is no successor in district.

(4) An order which has been dealt with in appeal or on revision shall no reviewed by any Revenue Officer subordinate to the appellate or revisional authority.”

(Emphasis Supplied)

7] It is apparent from the aforesaid provision that the Board of Revenue or any Officer has the power to review its own order not only on an application filed by any interested party, but suo motu also, and in the present case, when the application u/s.35(2) was already filed before the Board of Revenue, may be under wrong provision of the Code, it could easily have been considered by the Board of Revenue as a review petition u/s.51, as the powers u/s.51 could have been exercised suo motu. However, learned members of the Board of Revenue, instead of restoring the matter after five years, has spaciously held that the petitioner ought to have filed a review petition under Section 51 of the Code of 1959.

8] In the considered opinion of this Court, the aforesaid order passed by the Board of Revenue cannot be countenanced in the eyes of law as learned members of the Board of Revenue have failed to exercise their jurisdiction as provided u/s.51 of the Code. This court is of the considered opinion that it ought to have been seen by the Board of Revenue that the party was litigating the matter since last five years, and the restoration application was filed only after one day of rejection of the revision, thus, if it was of the opinion that instead of s.35(2) application, the petitioner should have filed an application u/s.51 for review of the order, it should have exercised its powers u/s.51, suo motu.

9] In view of the same, the impugned order dated 24.01.2024 is hereby, quashed and the matter is remanded back to the Board of Revenue with a further direction to decide the matter afresh, after allowing the counsel for the respondents, who was earlier appearing for the respondents, to address the Board of Revenue so that before the order of abatement is set aside, further time would not be wasted in issuing notices to the other respondents and their legal representatives, who are at present eleven in number.

10] With the aforesaid directions, the petition stands disposed of.