Indrabhan, & Ors. vs Maanwati, & Ors.

The instant intra court appeal filed under Section 2(i) of M.P. Uchcha Nyayalaya ( Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 (hereinafter referred as "2005 Act") challenges the final order dated 24.08.2017 passed by learned Single Judge in WP.3398/2017 dismissing the petition in question by which revisional order of Board of Revenue dated 07.04.2017 was assailed. The said order of Board of Revenue was passed upholding the order of SDO dated 25.07.2016 by which while allowing the appeal preferred by respondent herein the order of

Tehsildar, Shivpuri dated 05.01.2016 rejecting the application u/s 250 of M.P. Land Revenue Code, 1959( for brevity " MPLR Code") preferred by the respondent herein was set aside with direction to the Tehsildar to proceed with the case u/s 250 of MPLR Code and decide the same in accordance with law.

Learned counsel for the rival parties are heard on the question of admission.

At the very outset, learned counsel for the respondent has raised preliminary objection regarding maintainability of this appeal on the ground of statutory bar contained in section 2(i) of the 2005 Act by submitting that the jurisdiction exercised by the Single Bench was u/Art. 227 and not original writ jurisdiction and thus, present appeal is not maintainable.

Learned counsel for the writ appellant, on the other hand, besides raising issue of merit has stressed upon the failure of the Board of Revenue while passing the impugned order dated 07.04.2017, to decide on the legal issue of applicability of first proviso of Section 49(3) of the MPLR code, despite the same being pleaded and argued before the Board of Revenue.

Dwelling upon the issue of maintainability of this appeal first, this Court is of the considered view that the present writ appeal is maintainable as the power exercised by the learned single Judge was composite one u/ Art. 226 and as well as Art. 227 of the Constitution of India where the writ and so also supervisory jurisdiction of this Court were invoked.

5.1 More so, the decision of the Full Bench rendered in the case of Shailendra Kumar Vs. Divisional forest Officer and Anr. on 06.07.2017 in writ appeal No. 286/2017, the writ appeal is held the writ appeal therein to be maintainable against the order of Single Judge arising out of the award / order passed by the Labour Court under the relevant Industrial Law. Thus, this Court rejects the preliminary objection of the respondent and proceed to decide the matter on merits.

Though number of questions have been raised by learned counsel for the appellant touching the merits, but this Court would not like to dwell upon the same for the obvious reason that singular issue of applicability / non-applicability of Section 49(3) of MPLR Code, has not been considered by the Board of Revenue.

Challenge before the single Bench was to the order of Board of Revenue dated 07.04.2017 rejecting the revision filed by the appellant herein. Resultantly, the order of the SDO which was assailed before the Board of Revenue passed in favour of the respondent was upheld. The SDO while passing the order dated 25.07.2016 assailed before the Board of Revenue, found the order of Tehsildar rejecting the application u/s 250 MPLR Code preferred by the respondent to be unlawful on merits and after quashing the same, returned / remanded the case to the court of Tehsildar for deciding the application u/s 250 preferred by the respondent herein in accordance with law.

Tehsildar had rejected the application u/s 250 of MPLR Code and declined to interfere in the matter on account of the issue pertaining to the same property pending before the Civil Court where restraint order against alienation of the suit property was passed by the court of civil jurisdiction. The SDO while passing the appellate order dated 25.07.2016 found that there was no restrain over the Revenue Authority to decide the question of presence or absence of encroachment u/s 250 over the land by rendering finding that a mere restraint over the right to alienate the property is conceptually different and distinct from the aspect of possession / occupancy has to be merely dealt with by Tehsildar while deciding the application u/s 250.

One of the question raised before the Board of Revenue by the appellant while assailing the appellate order of the SDO dated 25.07.2016 was the applicability of first proviso to Section 49(3) of the MPLR Code which since its amendment w.e.f. 2011 prohibits the appellate authority from remanding the matter for disposal to any Revenue Officer subordinate to it. For ready reference and convenience, amended Section 49(3) of MPLR Code is reproduced below :-

"49. (3). Power of appellate authority - After hearing the parties, the appellate authority may confirm, vary or reverse the order appealed against, or may take such additional evidence as it may consider necessary for passing its order: Provided that the appellate authority shall not remand the case for disposal by any Revenue Officer subordinate to it. Provided further that all such cases which have been remanded to the sub-ordinate Revenue Officers by the Appellate or Revisional Authorities before the commencement of the Madhya Pradesh Land Revenue Code (Amendment) Act, 2011 shall be heard and decided by such Revenue Officer." 10. Thus, under the said amended provision, the power of remand which earlier was vested in the appellate authority was taken away. It is obvious that the object is to ensure expeditious disposal of appeals on merits by preventing the appellate authority from remanding the matter to the subordinate revenue authority, thereby prolonging the litigation.

A bare scrutiny of the order of the Board of Revenue dated 07.04.2017 reflects that in para 3 of the same, the said argument of applicability or otherwise of first proviso to Section 49(3) to the facts of the case was though noted as the submission of the learned counsel for the appellant, but was ultimately not decided while dismissing the revision of the appellant.

In view of the above, it appears that Board of Revenue abdicated its judicial duty to render findings on an issue which was not only pleaded but also argued and which went to the root of the

matter as it pertains exclusively to the domain of law. To the extent of failure on the part of the Board of Revenue to render finding in respect of applicability / non-applicability of first proviso to Section 49(3), the Board of Revenue has failed to exercise the jurisdiction vested in it by law.

Accordingly, this Court unhesitatingly holds that writ Court ought to have truncated the order of Board of Revenue and asked it to exercise its jurisdiction on the aspect instead of dwelling into the merits of the matter. Thus, accordingly, this Court deems it appropriate to direct the Board of Revenue to render a specific finding in respect of applicability / non-applicability of first proviso to Section 49(3) of MPLR Code.

Consequently, the writ appeal stands allowed. The impugned order of the writ Court dated 24.08.2017 passed in WP No. 3398/2017 is set aside. The order of Board of Revenue dated 07.04.2017 rendered in Revision No. 2684-II-16 District Shivpuri is also set aside with a direction to the Board of Revenue to render a specific finding on the aspect of applicability / non applicability of first proviso to Section 49(3) of MPLR Code after hearing the rival parties on the issue alone, as expeditiously as possible preferably within a period of 6 months from today.

Meanwhile, for a period of 06 (six) months or till a fresh decision is taken by the Board of Revenue, whichever is earlier, the Tehsildar, Shivpuri is restrained from proceeding with the case u/s 250 MPLR Code preferred by the respondent in terms of the order dated 25.07.2016 passed by SDO, Shivpuri.

No cost.