Keshri Nandan & Another vs Pradeep Kumar And Others

This petition has been filed by the petitioners under Article 227 of the Constitution of India challenging the order dated 04.04.2019 (Annexure-P/3)

passed by the Additional Commissioner under the revenue proceedings.

A preliminary objection is raised by the learned counsel for the respondents is that against the order of Additional Commissioner, petition under

Article 226 of the Constitution of India is maintainable but not under Article 227. He submits that the Commissioner Revenue does not come within the

superintendence power of the High Court and accordingly the petitioners cannot avail the superintendence jurisdiction of the High Court by filing

petition under Article 227 of the Constitution of India.

In reply to the objection raised by the respondents, the learned counsel for the petitioners submits that in all quasi-judicial proceedings, the High Court

can entertain petition under Article 227 of the Constitution of India. To support his contention, he relied upon a decision reported in 1984 (Supp) SCC

540 [Manmohan Singh Jaitla vs. Commissioner, Union Territory of Chandigarh and Others], in which the Supreme Court, while dealing with the

petition under Article 227 of the Constitution of India and objection regarding its maintainability, has observed as under :-

“7. The High Court declined to grant any relief on the ground that an aided school is not ‘other authority’ under Article 12 of the Constitution

a4nd is therefore not amenable to the writ jurisdiction of the High Court. The High Court clearly overlooked the point that Deputy Commissioner and

Commissioner are statutory authorities operating under the 1969 act. They are quasi-judicial authorities and that was not disputed. Therefore, they will

be comprehended in the expression ‘Tribunal’ as under in Article 227 of the Constitution which confers power of superintendence over all

courts and tribunals by the High Court throughout the territory in relation to which it exercises jurisdiction. Obviously, therefore, the decision of the

statutory quasi-judicial authorities which can be appropriately described as tribunal will be subject to judicial review namely a writ of certiorari by the

High Court under Article 227 of the Constitution. The decision questioned before the High Court was of the Deputy Commissioner and the

Commissioner exercising powers under Section 3 of the 1969 Act. And these statutory authorities are certainly amenable to the writ jurisdiction of the

High Court.â€​

In view of the observation made by the Supreme Court, it is clear that the Commissioner under the present circumstances can be considered to be a

quasi-judicial authority as he was functioning as a statutory authority prescribed under M.P. Land Revenue Code, 1959 (hereinafter referred to as the

‘Code of 1959’). Thus, the objection raised by the respondents regarding maintainability of the petition under Article 227 of the Constitution of

India is hereby rejected.

The learned counsel for the petitioners submits that the property in question was purchased by the petitioners in the year 1998 from the respondent

No.4 namely Kamlesh Kumar S/o Late Shri Jagdev Prasad Nigam vide sale deed dated 15.09.1998 (Annexure-P/1) and on the basis of the said sale

deed they moved an application for mutation of their names which got allowed on 15. 11.1998 and accordingly, the revenue records were corrected

entering the name of the petitioners in respect of the land in question. An appeal has been preferred in the year 2016 by the respondents No.1 to 3

disputing the mutation made in favour of the petitioners on the ground that the property sold to the petitioners by respondent No.4 was a joint family

property and the respondent No.4 was one of the co-sharers in the same and he has sold the land in excess of his share and no notice before the

mutation had been issued by the revenue authorities to them and as such, that mutation which was executed in favour of the petitioners got set aside.

Against the said order, an appeal was preferred before the Sub-Divisional Officer by the present petitioners but that appeal was rejected vide order

dated 28. 07.2017 (Annexure-P/2) against which a second appeal under Section 44(2) of the Code of 1959 was preferred but that appeal was also

dismissed by the Additional Commissioner against which the petitioners have filed this petition challenging the orders passed by the revenue authorities

mainly on the ground that the authorities have not appreciated the existing facts and circumstances of the case. The learned counsel for the petitioners

has also drawn the attention of this Court towards the documents Annexure-P/4 i.e., the Khasra Panch sala of the year 1994-95 and 1998-99. In the

said documents, entries have been made in respect of the some partition which took place somewhere in the year 1997 showing that 0.825 hectares of

land was given to the respondent No.4. He submits that although, the authorities have taken note of the Khasra entries for the respective year 1994-95

to 1998-99 but ignored the material entry regarding the partition of the disputed land. The learned counsel for the petitioners further pointed out that

the revenue document, i.e., Annexure-P/6 in which the respective share over the property in question has been shown and the land measuring 0.825

hectares is shown to be recorded in the name of the respondent No.4. He submits that in view of the existing circumstances when the revenue

authorities have not taken care of the partition which took place between the respondents No. 1 to 3 and 4 and also without taking note of the fact that

the sale deed got executed in the year 1998 has not been challenged and that the said sale deed was the foundation of mutation made in favour of the

petitioners, the orders passed by the revenue authorities including the order impugned are liable to be set aside as the same are illegal and contrary to

law.

Per contra, Shri Tripathi, learned counsel appearing for the respondents No.1 to 3 submits that the documents Annexure-P/4 was never placed

before the authorities. He also submitted that entry in respect of the partition of land is forged and he has applied for the said documents under the

Right to Information Act but from the office of Collector it has been informed that no such documents are available in their office and in this regard he

has filed a document dated 09.06.2016 (Annexure-R/1) along with the reply. He further submits that the petitioners have not disclosed the fact before

the revenue authorities regarding execution of the sale deed and also about such partition which is contained in the documents Annexure-P/4.

As per the arguments advanced by the learned counsel for the respondents No.1 to 3, since the petitioners failed to establish any grounds and to

substantiate as to how the order passed by the Additional Commissioner is contrary to law, they are not entitled to get any relief in the petition

preferred under Article 227 of the Constitution of India. For this purpose, he has relied upon a decision of the Supreme Court reported in 2010 (4)

M.P.L.J. 590 [Shalini Shyam Shetty vs. Rajendra Shankar Patil]. He submits that the Supreme Court in the case of Shalini Shyam Shetty (supra) has

laid down the parameters under which the High Court can interfere in a petition filed under Article 227 of the Constitution of India. Accordingly, the

observation made by the Apex Court is required to be seen and thus, paragraph 62 of the said order may be considered and it is apt to reproduce

paragraph-62 which reads as under :-

“62. 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.â€​

Arguments heard, record perused.

In view of the contention raised by the learned counsel for the petitioners, it is an admitted position that the respondent No.4 executed the sale deed

in favour of the petitioners in the year 1998. The Sub-Divisional Officer, in its order dated 28.07.2017 (Annexure-P/2), has also taken note of the sale

deed which was executed in favour of the petitioners and has also taken note of the revenue entries as shown in Khasra Panch sala for the year

1994-95 to 1998-99. It is apparent that despite taking note of such material facts, the Sub-Divisional Officer has not given any reasoning as to how the

mutation which took place on the basis of sale deed can be said to be illegal. He has also not assigned any reason that the documents Annexure-P/4

contained the entries regarding partition. He acted presuming that the facts mentioned by the respondents No.1 to 3 are correct and has not taken note

of the impact of the sale deed executed by the respondent No.4 in favour of the petitioners and when the same has not been assailed by the

respondents No.1 to 3 in any competent court for seeking declaration about its illegality. In the order, it is mentioned that while getting the name of the

petitioners mutated provisions made under Section 110 of the Code of 1959 have been followed. Although, it does not describe as to what irregularities

have been committed by the authorities and in what manner the mentioned rules have not been followed. Thereafter, the Additional Commissioner has

reiterated the findings given by the Sub-Divisional Officer and rejected the appeal. None of the revenue authorities in the orders passed by them have

considered the impact of the sale deed executed by the respondent No.4 in favour of the petitioners. It is noteworthy to mention here that the sale

deed is a valid document and is the foundation for mutating the name of the holder of the sale deed. If the document of sale is available then the

revenue authorities have no option but to mutate the name of the holder of the sale deed in the revenue records and as such, mutation done in favour

of the petitioners cannot be set aside unless the sale deed executed in their favour is set aside by any competent court. Thus, in my opinion all the

revenue authorities have committed gross and material illegality while setting aside the mutation made in favour of the petitioners which was made on

the basis of the sale deed.

So far as the objection raised by the learned counsel for the respondents relying upon a decision in the case of Shalini Shyam Shetty (supra) and the

criteria laid down therein as to under what circumstance the High Court can interfere while exercising its superintendence power under Article 227 of

the Constitution of India is concerned, from perusal of the documents and orders passed by the revenue authorities and the discussion made herein

above, this is a fit case in which this Court can exercise power under Article 227 of the Constitution of India for the reasons that the order impugned is

apparently illegal and suffers from errors of law and fact and is a clear example of patent perversity. Although, the learned counsel for the

respondents is alleging that the entries made in the documents Annexure-P/4 in respect of partition are forged and in support of his contention he has

filed a document dated 09.06.2016 but only on the basis of such a disclosure made in the said document, I do not find any specific averments and

information that the entries made in the Khasra Panch sala as filed by the petitioners as document Annexure-P/4 is a forged one. In such a

circumstance, the orders impugned are illegal and are clear example of perversity therefore, the same is not sustainable in the eye of law and

accordingly they are set aside. The order passed by the Commissioner since found illegal therefore, the orders passed by its subordinate authorities are

also illegal and set aside. However, if the respondents No. 1 to 3 avail the civil remedy for challenging the sale deed executed in favour of the

petitioners, in that event, the civil court will decide the same in accordance with law on its own merits without influencing with the findings or

observations made by this Court in this order.

Accordingly, the petition filed by the petitioner is allowed and disposed of as indicated herein above. Parties shall bear their own costs.

Certified copy as per rules.