Jamila Bee vs State Of Madhya Pradesh And Others

The petitioner before this Court has filed present petition being aggrieved by the order passed by the respondent No.6 - Board of Revenue dated 14/11/2018.

The facts of the case reveal that the petitioner has submitted an application under Section 73 of the M. P. Land Revenue Code, 1959 before the Tehsildar and the Tehsildar has passed an order in the matter. The order was passed by the Tehsildar on an application preferred by the petitioner on 10/09/2014. The Tehsildar, who has passed the order was transferred and thereafter, his successor forwarded the matter to the Collector stating that his predecessor was not having any power to pass any order under Section 73 and the Collector, as it was a government land, has passed an order on 28/02/2015 setting aside the order passed by the Tehsildar dated 10/09/2014. Against which the present petitioner gone before the Board of Revenue and the Board of Revenue by an order dated 14/11/2018 has dismissed the revision.

Shri Bagadiya, learned counsel has drawn the attention of this Court towards proceedings, which are enclosed with the petition as Annexure-P/4 and the proceedings reveals that there was no paper publication and there was no order directing paper publication as reflected from the proceedings.

The second important aspect of the case is that the Tehsildar was not having power under Section 73 of the MPLRC, it is only the Settlement Officer, who can pass an order under Section 73 of the MPLRC. The third important aspect of the case is that the so called paper publication was done on 18/04/2014 inviting objection from public at large and on 18/04/2014 itself the order has been passed.

The present case reflects a very sorry state of affairs in which the Tehsildar has given a complete go bye to the provisions of the M.P. Land Revenue Code, 1959 and with a calculative move the government land has been converted in to a private land and in those circumstances the Collector as well as the Board of Revenue were justified in passing the impugned orders.

It has been vehemently argued by learned counsel for the petitioner that the petitioner was not heard in the matter. The settled preposition of law is that fraud vitiates everything. If an authority, who is not competent to pass an order under Section 73 could not have done so and therefore, the basic order itself passed by the Tehsildar is a nullity and therefore, the question of grant of opportunity, in the peculiar facts and circumstances of the case, does not arise, otherwise also the petitioner has been heard at length by the Board of Revenue. The scope of interference by this Court under Article 227 of the Constitution of India is quite limited.

The apex court in the case of Shalini Shyam Shetty Vs. Rajendra Shankar Patil reported in 2010 (8) SCC 329 in paragraph 49 held as under:-

"49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:

(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.

(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, 'within the bounds of their authority'.

(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.

(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court.

(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality."

In light of the aforesaid judgment as no patent illegality has been committed and the order passed by the Board of Revenue does not suffer from any jurisdictional error, this court does not find any reason to interfere with the order dated 14/11/2018. The writ petition stands dismissed.

No order as to costs. Certified copy as per rules.