Jogendra Singh And Others vs State Of M.P. And Others

Constitutional validity of proviso to sub-section (1) and sub-section (1-A) of Section 178 of M.P. Land Revenue Code, 1959, is being

challenged by this petition under Article 226 of the Constitution of India. Besides, the petitioners also seek quashment of order dated 14.9.2016

passed by Tahsildar in a proceeding under Section 178 of the Code 1959 and initiation of departmental enquiry against Respondent No.4 Tahsildar,

Ashok Nagar.

(2) So far as challenge to the order dated 14.9.2016 is concerned, it is not disputed at bar that the said order has been subjected to

challenge before the Sub Divisional Officer. This fact is also borne out from paragraph 5.5 of the petition. In view whereof, since the petitioners

have availed the remedy of appeal against the order dated 14.9.2016, we are not inclined to entertain the plea against the said order and leave the

petitioners to pursue said remedy.

(3) As regard to initiation of the departmental enquiry proceedings for major penalty under the M.P. Civil Services (Classification, Control and

Appeal) Rules, 1966Â against respondent No.4-Tahsildar Ashoknagar; the same is sought because of his passing the order dated 14.09.2016. The

said relief also we are not inclined to entertain for the reason that the Tahsildar was exercising the jurisdiction vested in him under section

178 of the Code of 1959 on an application preferred by the respondents for partition. The Tahsildar thus was discharging his quasi judicialÂ

duties which cannot be termed  as misconduct under M.P. Civil Services (Conduct) Rules, 1965 attracting any disciplinary proceeding. In view

whereof, the relief sought for initiation of departmental enquiry proceedings against the Tahsildar Ashoknagar is also negatived at the outset.

(4) Returning to the challenge to validity of proviso to subsection (1) and sub-section (1-A) of section 178 of Code, 1959. The said two

provisions are in the following terms:

“178. Partition of holding.â€" (1) If in any holding, which has been assessed for purpose of agriculture under Section 59, there are more than one

bhumiswami any such bhumiswami may apply to a Tahsildar for a partition of his share in the holding :

Provided that if any question of title is raised the Tahsildar shall stay the proceeding before him for a period of three months to facilitate the institution

of a civil suit for determination of the question of title.

(1-A) If a civil suit is filed within the period specified in the proviso to sub-section (1), and stay order is obtained from the Civil Court, the Tahsildar

shall stay his proceedings pending the decision of the civil court. If no civil suit is filed within the said period, he shall vacate the stay order and

proceed to partition the holding in accordance with the entries in the record of rights.â€​

(5) These two provisions i.e. proviso to sub-section (1) of Section 178 and sub-section (1-A) of Section 178 of the Code, 1959 were

substituted by M.P. Act No.18 of 1978 with effect from 13.6.1978.Â

(6) The substitution, in principle, emanates from the decision by Full Bench of this Court in Nagjiram Vs. Mangilal and others, AIR 1977

MP 8 wherein the Full Bench was in seisin with reference by the Division Bench to resolve the controversy between Paitram Vs. Board of

Revenue, 1968 Jab LJ 304 and Gangaram Vs. Kanhaiyalal and others, 1971 Jab LJ 819. In both these cases the question was as to what

the Tahsildar can do and how he should proceed with an application for partition made before it under section 178 (1) of the Code of

1959. In Paitram's case the Division Bench had held:

“(i) the language of the proviso is plain.

(ii) that there is no warrant for reading the words'genuine' or 'bogus' along with the word 'raised'.

(iii) to decide the question whether the plea of titleraised is genuine or bogus is to decide the question of title itself.

(iv) Ordinarily, it is not the function of RevenueCourts to decide the question of title, it is exclusively the function of Civil Courts.

(v) The Naib-Tahsildar was in error in dismissing theapplication, he should have adjourned the case enabling the parties to raise the question of title

before the Civil Court.

(vi) Mahingpalsingh, who raised the question oftitle, should have been directed to institute a civil suit within a time to be fixed by the Naib-Tahsildar.

(vii) If Mahingpalsingh did not take the matter tothe Civil Court within a reasonable time, the Revenue authorities could proceed to effect the partition.

(viii) If the dispute was got decided, partition could be effected in the light of the decision of the Civil Court.

Whereas in the case of Gangaram (supra) it was held:

“(i) if a party wants a change to be effected in the status quo, it is for him to establish that the conditions justifying the action of the appropriate

Tribunal are there,

(ii) If the existence of such conditions is not patentor admitted, he should get them established by an appropriate procedure. It is not for the party who

recites the prayer for the change to go to the appropriate authority or tribunal and get a decision that the condition justifying the change do not exist.

(iii) It was not Gangaram, but Kanhaiyalal, whowanted change in the status quo.

(iv) The party seeking a partition has to get aclearance from the Civil Court to the effect that there has been no partition.

(v) It was entirely a matter of form whether theapplicant's application (under Section 178) before the Tahsildar is to be dismissed or be kept pending

for a reasonable time to enable him to get a decision. The proceedings could be taken up after the 'dispute' was decided by the Civil

Court.â€​

(7) The Full Bench while recording its reservation qua (vi) and (vii)Â in Paitram (supra)Â observed :

“7. A question of title is raised within the meaning of this proviso when the applicant's right to partition is disputed. The first ingredient is

unqualified. It comes into play both when the question of title is genuine or bogus, strong or weak, bona fide or mala fide. The second requirement of

the proviso is that the Revenue authorities have just to stay their hands as if they will literally shut up the case to be reopened when the question of

title has been decided by a civil suit. The proviso does not empower or authorise the Revenue authorities to give any direction either as to the person

who should go to the civil court or as to the reason to be given for such direction or as regards the time within which a party should approach the Civil

Court, nor the consequences of non-compliance with any such direction given by any Revenue authority. Clearly enough the Revenue authorities have

no jurisdiction to give any such direction. All that they have to do is to tell the parties that they could not proceed with the partition proceeding unless

the question of title raised has been decided by a civil suit. That is all. It will then be up to that party which wants the revenue proceedings for partition

to be reopened, to file the civil suit. However, it is not for the Revenue authorities either to direct or to advise such party to institute a civil suit. If such

party is desirous that the partition proceeding be reopened, it will bring a civil suit. If it does not, there is no consequence except that the proceedings

for partition before the Revenue authorities will be abortive. It cannot be dismissed on merits for the inaction, that is for not going before the civil

Court.

On ultimate analysis it must be held that the Revenue authorities have no jurisdiction,

(a) to proceed with partition proceedings whena question of title is raised, or

(b) to dismiss the proceeding when a questionof title is raised, or

(c) to give any direction to any party toinstitute a civil suit, much less to fix any time for that purpose.

The conclusions we have reached may now be summed up thus :

(i) When there are more Bhumiswamis thanone, to any holding (which has been assessed for the purpose of agriculture) every one of them has the

right to apply to the Tahsildar for a partition of his share.

(ii) the proviso to Section 178 (1) of the Madhya Pradesh Land Revenue Code, 1959, is attracted as soon as any question of title is raised. The

Revenue authority has no jurisdiction to enter into any such question, whether the question of title raised is genuine or bogus, strong or weak, bona fide

or mala fide.

(iii) When a question of title is raised, partitionshall not be made and the Revenue authority shall stay its hands to await the decision of the Civil Court.

(iv) The Revenue authority has no jurisdictionto give any direction to any particular party to institute a civil suit, much less to fix any time for that

purpose.

(v) The application for partition will in suchcase remain in abeyance until the question of title is decided. The Revenue authority may for statistical

purpose consign the proceeding to the record room to be recalled when the decision of the Civil Court is received. The application for partition cannot

be dismissed.

(vi) When the decision of the Civil Court isreceived, the Revenue authorities shall proceed to make the partition having regard to the decision of the

Civil Court.

(vii) Paitram v. Board of Revenue (1968 Jab LJ304) was not correctly decided in so far as it was held that a direction ought to be given to one of the

parties.

(viii) Gangaram v. Kanhaiyalal (1971 Jab LJ819) was not correctly decided in so far as it was held that the party seeking partition must necessarily go

to the Civil Court. All that the Revenue authority can do is to tell the parties that since a question of title is raised, it would not proceed with the

partition proceedings. The Revenue authority must stop on that point and leave the parties to take recourse to the civil suit. Naturally, that party will go

to the Civil Court, who wants the partition proceeding to be proceeded with and completed. However, it is not for the Revenue authority to advise

either of the parties or to give any direction to either of them to institute a civil suit.

Before we leave this case we desire to say that as argued by Shri Chandmal Mehta a great hardship is likely to result to a bona fide applicant, who

has a just claim for partition and who is entered in the revenue records as a Bhumiswami, if the proviso to Section 178 as it is. We quite see that every

clever defendant, who may be in possession of the entire holding, would just raise any flimsy or frivolous dispute as to the applicant's title, thereby to

defeat or delay the partition proceedings. It will not be a reasonable law that the applicant should be pushed to the Civil Court to seek a declaration of

his title or to get his share determined even when the entries in the Revenue record fully support his case, nor will it be a just law that the Tahsildar

should enter into any inquiry or record a finding to the effect in whose favour there is a prima facie case, and determine which of the parties should

approach the Civil Court for a declaration of title. The Tahsildar should not be required to enter into a controversy regarding title which may involve

the application of the mind in the light of various civil enactments. Having regard to the sanctity of the revenue record the Tahsildar would have, but

for the proviso, ordinarily proceeded to make the partition according to the revenue record, and the party who would be adversely affected if the

partition were made according to the revenue record, would have gone to the Civil Court.

Therefore, we think that a course just and fair to all concerned would have been this : As soon as a question of title is raised, the Tahsildar should

make an order staying the proceedings before him. If no civil suit is instituted within a certain specified time from the date of the stay order, the

Tahsildar should proceed to make the partition in accordance with the entries in the revenue records. This, however, we cannot say by way of

interpretation of the section. We have our own limitations. The Court must not arrogate to itself the functions of the Legislature. Our function is

merely to interpret the law according to the principles of interpretation of statutes and to enforce the law as it is. The Legislature can in no time

redress the visible hardship by a simple amendment.

(Emphasis Supplied)

It is this observation which led the legislation to incorporate amendment in proviso to sub-section (1) of Section 178 and introduced new sub-section

(1-A) to Section 178 of the Code.

(8) The precise contention on behalf of the petitioner in furtherance to the challenge is that, vide impugned amendment the legislation has specified

three months' time to facilitate the institution of civil suit for determination of title. It is urged that though visible hardship faced by a person who seeks

partition has been cured but the legislation by inserting the condition for obtaining a stay in a Civil Suit in sub-section (1A) of Section 178 has acted

beyond the verdict in Nagjiram (supra). It is then contended that the legislation has infringed the doctrine of separation of power which is the basic

structure of the Constitution which tantamount to colourable legislation. Following decisions were cited on behalf of the petitioner to substantiate his

contentions that it is beyond the legislative competence to attempt to overrule or set aside the decision of the Court. The petitioner relies upon:-

(1) Liyanage & Ors. Vs. Reginam (1966) 1 All E R

(2) Shri Prithvi Cotton Mills Vs. Broach Borough Municipality and others (1969) 2 SCC 298

(3) Janpada Sabha Chhindwara Vs. The Central Provinces Syndicate Ltd and others (1970) 1 SCCÂ 509

(4) Keshavanand Bharti Vs. State of Kerala and Anr [(1973) 4 SCC 225]

(5) Indira Nehru Gandhi Vs. Shri Raj Narain & Anr.[(1975) Suppl. SCC I]

(6) Madan Mohan Pathak and Anr. Vs. Union of India [(1978) 2 SCC 50]

(7) State of Gujarat Vs. Raman Lal Keshav Lal Soni and Ors [(1983) 2 SCC 33]

(8) P. Sambamurthy and others Vs. State of Andhra Pradesh and another [(1987) 1 SCC 362)]

(9) Cauvery Water Disputes Tribunal [(1993) Suppl.1 SCC 96]

(10) P. Kannadasan and others Vs. State of T.N. and others [(1996) 5 SCC 670]

(11) State of T.N. Vs. Arooran Sugars Ltd. [(1997) 1 SCC 326)]

(12) Chairman, Rly Board Vs. C.R. Ranga [(1997) 6 SCC 623)] (13) Virender S. Hooda and others Vs. State of Haryana and others [(1999) 3 SCC

696)]

(14) State of Bihar and another Vs. Bal Mukund Sah and others [(2004) 4 SCC 640)]

(15) Union of India Vs. Elphinstone Spinning and Weaving Co. Ltd. and others [(2001) 4 SCC 139)]

(16) People's Union of Civil Liberties (PUCL) and another Vs. Union of India and another [(2003) 4 SCC 399)]

(17) Dharam Dutt and others Vs. Union of India and others [(2004) 1 SCC 712)]

(18) Virender Singh Hooda & Others Vs. State of Haryana & Others [(2004) 12 SCC 588)]

(19) Mullaperiyar Environmental Protection Forum Vs. Union of India and others [(2006) 3 SCC 643)]

(20) I.R. Coelho (Dead) by LRs Vs. State of T.N. [(2007) 2 SCC 1)]

(21) State of Tamilnadu Vs. State of Kerala and another [(2014) 12 SCC 696 )]

(22) Ramesh Ahluwalia Vs. State of Punjab and others [(2012) 12 SCC 331)]

(23) In Re: The Punjab Termination of Agreement Act, 2004 [Special Reference No.1/2004 dated 10th November, 2016.]

(24) Nikesh Tarachand Shah Vs. Union of India and Anr. [WP(Criminal) No.67/2017 (Constitution Bench)]

(9) It is urged on the basis of these decisions that though it is open to the legislature to within certain limits amend the provision of an Act and to

declare what the law shall be deemed to have been; but it is not open to the legislation to say that a judgment of a Court properly constituted and

rendered in exercise of its powers in a matter brought before it shall be deemed to be ineffective (these submissions evidently are borne from the

decision in Janpad Sabha Chhindwara (supra).

(10) There can be no cavil to the proposition that it is beyond the legislative competence to attempt to overrule or set aside the decision of the Court by

legislation. However, a validating Act may even make ineffective judgments and orders of competent courts provided it by retrospective legislation

removes the cause of invalidity or the basis which had led to these judgments [Please See S.S. Bola and others Vs. B.D. Sardana and others AIR

1997 SC 3127 (from Paragraph 186 to 198); State of Bihar and others Vs. Bihar Pensioners Samaj (2006) 5 SCC 65 (Paragraph 16 & 17). And a

doctrine of separation of powers does not prevent the legislation from validating a law or executive order declared invalid by Court by passing a

suitable validating Act which effectively removes the cause of invalidity and thereby makes the judgment inoperative. [Please See Chapter 6 Syn.

3(a) Principles of Statutory Interpretation by Justice G.P. Singh]. However, we are not presently concerned with the validating Act.

(11) As regard to the contention that amendment incorporated suffers the vice of colourable legislation. This doctrine as held in Sri Sri Sri K.C.

Gajapati Narayan Deo and.... Vs. State of Orissa [AIR 1953 SC 375] means that the legislation in passing a statute, though purporting to act within

the limits of its powers, has in substance transgressed these powers.

(12) In the case at hand Entry 18 of List II of Seventh Schedule of the Constitution empowers the State to legislate in respect of land, that is to say,

right in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land;

land improvement and agricultural loans; colonization. It is also within the competence of the State legislature to lay the procedure to achieve the

object for which enactment is brought in vogue. Since the legislation having experience, which can be gained through an empirical study or even from

a decision of the Court, as to the usual mischief which could be played by the person in possession of a property when an application is filed for

partition of an agricultural land to raise a dispute qua the title, to eradicate such possibility it is within the legislative competence to lay down the

parameters such as granting specific time to file the suit for determination of title. And in order to further curtail the possibility of the party only filing

the suit and not sincerely pursuing the same, to lay down that the stay order is to be obtained in the Civil Suit. Careful reading of the observation by

Full Bench in Nagjiram (supra) in paragraph 17 indicates the mischief which was required to be overcome. It was observed that a “clever

defendant, who may be in possession of the entire holding would just raise any flimsy or frivolous dispute as to applicant's title, thereby to defeat or

delay the partition proceedings.†It is to rule out any such possibility as expressed by their Lordships the State Legislation incorporated sub-section

(1A) in Section 178. In this context, adding of stipulation “and stay order is obtained from the Civil Courtâ€, in our considered opinion, cannot be

held to be beyond legislative competence of State or in derogation to the decision in Nagjiram (supra). In fact their Lordships in Nagjiram (supra)

refrained from interpreting the provisions of Section 178 of the Code as would tantamount to legislating. In view whereof, it cannot be held that

amendment intends to override the judgment in Nagjiram (supra).

(13) Trite it is that legislative enactment can be struck down only on two grounds, viz.,that,

“(i) the appropriate legislature does not have competency to make the law, and

(ii) it does not take away or abridge any of the fundamental rights enumerated in Part III of the Constitution or any other constitutional provisions.â€​

(14) In State of A.P. and others Vs. Mcdowell & Co. and others, (1996) 3 SCC 709, it is held:

“43 - - - - - - - - -A law made by the Parliament or the Legislature can be struck down by courts on two grounds and two grounds alone, viz., (1)

lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part-III of the Constitution or of any other constitutional

provision. There is no third ground. We do not wish to enter into a discussion of the concepts of procedural unreasonableness and substantive

unreasonableness - concepts inspired by the decisions of United States Supreme Court. Even in U.S.A., these concepts and in particular the concept

of substantive due process have proved to be of unending controversy, the latest thinking tending towards a severe curtailment of this ground

(substantive due process). The main criticism against the ground of substantive due process being that it seeks to set up the courts as arbiters of the

wisdom of the Legislature in enacting the particular piece of legislation. It is enough for us to say that by whatever name it is characterized, the ground

of invalidation must fall within the four corners of the two grounds mentioned above. In other words, say, if an enactment is challenged as violative of

Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein Similarly, if an

enactment is challenged as violative of any of the fundamental rights guaranteed by clauses (a) to (g) of Article 19 (1), it can be struck down only if it

is found not saved by any of the clauses (2) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary or

unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground

that court thinks it unjustified. The Parliament and the Legislatures, composed as they are of the representatives of the people, are supposed to know

and be aware of the needs of the people and what is good and bad for them. The Court cannot sit in judgment over their wisdom.â€​

(15) In M.H. Quareshi Vs. State of Bihar, AIR 1958 SC 731, while dealing with the scope and effect of Article 14 of the Constitution of India, it is

held:

“(15) The meaning, scope and effect of Art. 14, which is the equal protection clause in our Constitution, has been explained by this Court in a

series of decisions in cases beginning with Charanjitlal Chowdhury v. Union of India, 1950 S C R 869 :(A I R 1951 S C 41) (C) and ending with the

recent case of Ramkrishna Dalmia v. Justice Tendolkar, CA Nos. 455 to 457 and 656 to 658 of 1957 D/- 28-3-1958: (AIR 1958 S C 538) (D). It is

now well established that while Art. 14 forbids class legislation it does not forbid reasonable classification for the purposes of legislation and that in

order to pass the test of permissible classification two conditions must be fulfilled, namely, (i) the classification must be founded on an intelligible

differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) such differentia must have a

rational relation to the object sought to be achieved by the statute in question. The classification, it has been held, may be founded on different bases,

namely, geographical, or according to objects or occupations or the like and what is necessary is that there must be a nexus between the basis of

classification and the object of the Act under consideration. The pronouncements of this Court further establish, amongst other things, that there is

always a presumption in favour of the constitutionality of an enactment and that the burden is upon him, who attacks it, to show that there has been a

clear violation of the constitutional principles. The Courts, it is accepted, must presume that the Legislature understands and correctly appreciates the

needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate

grounds. It must be borne in mind that the Legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the

need is deemed to be the clearest and finally that in order to sustain the presumption of constitutionality the Court may take into consideration matters

of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at

the time of legislation. We, therefore, proceed to examine the impugned Acts in the light of the principles thus enunciated by this Court.â€​

(16) In Karnataka Bank Ltd. Vs. State of A.P., (2008) 2 SCC 254, it is observed:

“19. The rules that guide the constitutional courts in discharging their solemn duty to declare laws passed by a legislature unconstitutional are well

known. There is always a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be

free from doubt; â€to doubt the constitutionality of a law is to resolve it in favour of its validityâ€. Where the validity of a statute is questioned and

there are two interpretations, one of which would make the law valid and the other void, the former must be preferred and the validity of law upheld.

In pronouncing on the constitutional validity of a statute, the Court is not concerned with the wisdom or un-wisdom, the justice or injustice of the law.

If that which is passed into law is within the scope of the power conferred on a Legislature and violates no restrictions on that power, the law must be

upheld whatever a Court may think of it. [ See State of Bombay Vs. F.N. Balsara, AIR 1951 SC 318].â€​

(17) Thus, constitutionality of a statutory provision has to be adjudged on the anvil of whether the legislature is competent to legislate. Whether it

violates the provisions contained under Part III or any other provision of the Constitution. In the present case, as the petitioner fails to establish that the

State Legislature lacks legislative competence or that any provision contained in Part III of the Constitution is violated, we decline the plea that the

proviso to sub-section (1) of Section 178 of the Code and sub-section (1A) of Section 178 is ultra vires.

(18) Consequently, petition fails and is dismissed. No costs.