Judgment:
(1) This writ appeal is directed under Section 2 of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 assailing the order dated 27.7.2010 passed by the learned Single Judge in Writ Petition No.12435/05.
(2) Learned counsel appearing for respondents raised following preliminary objections:-
(i) That, before the writ Court appellant herein Smt.Kamla Singh was not a party, so she has no locus standi to file this writ appeal.
(ii) Respondent No.4 to 7 were not party before the writ Court, so that they have been wrongly arrayed as respondents and the appellant be directed to delete the names of the these respondents.
(iii) That Writ Petition No.12435/05 was decided by the Single Bench exercising the power under Article 227 of the Constitution of India against which no writ appeal lies, hence this writ appeal may be dismissed.
(iv) It is also submitted that in Writ Petition No.12435/05, order passed by the Board of Revenue dated 29.12.2004 was assailed by the State. The dispute was between State of M.P. and respondent No.1 Alka Singh. The appellant herein has no concern with the aforesaid land and even if the order is not passed in favour of Smt.Alka Singh, the appellant will not get the land and in case, aforesaid order is affirmed, Smt.Alka Singh is entitled to remain recorded as Bhumiswami. So the appellant who was not party to the proceedings even before the Revenue Court has no locus to file this writ appeal.
(v) That the State has not preferred any writ appeal against the impugned order and the order has attained finality between the parties.
(3) Shri Sheel Nagu, learned counsel appearing for the appellant submitted that the appellant is an effected party. The land which is involved in this case was the subject-matter of allotment of a retail outlet. Respondent No.1 Smt.Alka Singh on the basis of such land sought allotment of a retail outlet. The appellant raised some objections before the Grievance Redressal Forum of Indian Oil Corporation. As no cognizance was taken in respect of the said objections, the appellant filed a writ petition before this Court which was registered as Writ Petition No.3686/04 and in the said petition, directions were issued to the Grievance Redressal Forum of the Indian Oil Corporation to decide the objections of the appellant. In compliance of the order passed by this Court dated 30.11.2004 in W.P.No.3686/04, the Grievance Redressal Forum sustained objections and recommended for the cancellation of the allotment in favour of respondents No.4 and 5. However, subsequently the Indian Oil Corporation kept the matter in abeyance till the matter is decided by the High Court. It is also submitted by Shri Nagu that the Collector, Chhatarpur detected fraud played by the predecessor of the respondents No.4 & 5. The land was earlier recorded in the name of the State and without any order of the competent authority, land was recorded in the name of Baldev and subsequently to his successors. The Collector after recording such finding rightly directed for correction of entry in the revenue record. Even if the Board of Revenue and Single Bench of this Court were of the opinion that such an order has been passed without issuing a show-cause notice to respondent No.1 then matter ought to have been remanded back, but the Board of Revenue and the Single Bench erred in setting aside the order of the Collector.
(4) Shri Manikant Sharma, learned counsel appearing for respondent No.1 reiterated his contentions as stated hereinabove. It is also submitted by him that as the appellant was not party to the proceedings, she has no right to challenge the order passed by the Single Bench. Only the State Government was entitled to assail the order passed by the Single Bench in a writ appeal. In support of his contention, he has placed reliance to a judgment of this Court in Devi Prasad v. Kekse 1975 MPLJ 689. That the entries in the revenue record were recorded much before coming into force of M.P.Land Revenue Code, 1959 on 1.10.1959 and after long lapse of time, the Collector was not having any power even under section 50 of the M.P. Land Revenue Code to take the matter in suo motu revision and for setting aside the entries. He has placed reliance to the Apex Court judgment in State of Gujarat v. Patel Raghav Natha AIR 1969 SC 1297, a Full Bench judgment of this Court in Ushadevi v. State of M.P. 1990 MPLJ 353, Division Bench judgment of this Court in State of M.P. v. Harcharan Singh 2001 (3) MPLJ 389 and submitted that this appeal may be dismissed.
(5) Shri Naman Nagrath, learned Additional Advocate General submitted that the appellant herein has no right to file this appeal. So far as State is concerned, its rights are not effected by filing this appeal. The State reserves its right to challenge the order passed by the Single Bench before an appropriate forum. At present in absence of any sanction of the Law Department, an appeal has not been preferred by the State. However, he has reiterated his contentions that this appeal filed by Smt.Kamla Singh is incompetent.
(6) Shri Virendra Verma, learned counsel appearing for respondents No.6 and 7 submitted that respondents No.6 and 7 were not parties before the writ Court, so they have been unnecessarily impleaded as respondents in the case. Respondents No.6 and 7 have no concern with the lis and are ready to abide by any order passed by this Court.
(7) To appreciate rival contentions of the parties, it would be appropriate, if, in brief, the facts of the case are stated:-
The dispute in the present case is in respect of lands bearing khasras No.3309, 3310, 3311 and 3312 of Tehsil and District Chhatarpur. It is alleged that these lands were originally recorded in the name of the State Government. However, since 1943-44, these lands were recorded in the name of Baldev who was in possession and in cultivation. These entries continued till the life time of Baldev. Somewhere in the year 1979, Baldev died and the mutation was effected in the name of his son Rambharose. Rambharose sold the disputed lands by a registered sale-deed dated 3.6.1985 to Govinddas. Thereafter, the name of Govinddas was mutated in the revenue records. Govinddas also sold these lands by a registered sale-deed dated 24.3.1988 to one Jogendra and on 7.5.1988, the name of Jogendra was recorded in the revenue record. Jogendra died and after his death, on 21.3.2003, the lands were recorded in the name of his wife Alka Singh, the respondent No.1.
On 10.3.2000, one Damodar Prasad Tiwari filed a complaint to the Collector, Chhatarpur that the then Sub-Divisional Officer, Nawgaon Shri N.K.Jain had entered the name of his relatives in the revenue record as Bhoomiswami on different lands. The Collector, Chhatarpur made an enquiry on the complaint and found that mutation of the name of Baldev was made in the Khasras of 1943-44, 1952-53 and 1954-55 with the same ink and handwriting without mentioning name and address of Baldev which was suspicious. On recording this finding, the Collector, Chhatarpur by order dated 19.10.2001 directed that the name of Baldev S/o Leeladhar be deleted from the revenue papers and the lands be recorded in the name of State of M.P. Aggrieved by the order dated 19.10.2001, respondent No.1 Smt.Alka Singh preferred an appeal before the Additional Commissioner, but it was dismissed by order dated 29.11.2004.
Respondent No.1 Smt.Alka Singh preferred a second appeal before the Board of Revenue who by order dated 29.12.2004 found that the order has been passed without issuing any notice and extending opportunity of hearing to the persons affected and set aside the order passed by the Collector and directed for restoration of the entries.
(8) This order, passed by the Board of Revenue was assailed by the State of M.P. before the learned Single Judge and the learned Single Judge after considering the material on record held thus:-
"5. During the course of arguments, the learned Government Advocate fairly conceded that the Collector did not issue any notice to the persons interested in the lands before directing the deletion of name of Baldev from the revenue papers and restoring the entry in favour of the State of Madhya Pradesh. Baldev had died in the year 1979 whereupon the name of his son Rambharose was entered in the revenue papers. No proper enquiry was apparently made regarding Baldev and merely because his address was not mentioned in the khasra paper, it was improper on the part of Collector to suspect the entries made in their names as forged. The Board of Revenue has also taken the same view. There is nothing on record to suggest what interest complainant Damodar Prasad Tiwari had in filing the complaint and what prompted him to do so. The Collector's order is entirely silent on this point. There is also no evidence that Baldev was relative of the then Sub-Divisional Officer N.K.Jain or any other revenue officer. The entries in the name of private persons from Baldev to Alka has continued since since 1944 for nearly 60 years. The Board of Revenue is, therefore, fully justified in holding that Collector committed an illegality in treating the same with suspicion. In the fact situation of the case I find that the conclusion reached by the Board of Revenue is a reasonable possible view. It cannot be said to be unreasonable or arbitrary which may attract interference under Wednesbury principles. I also do not find any error of jurisdiction or mistake or error apparent on the face of record in the order of Board of Revenue."
On the basis of aforesaid, the learned Single Judge found that there was no merit in the petition and dismissed the petition. (9) From the perusal of the aforesaid, it is apparent that the powers of superintendence were exercised by the learned Single Judge under Article 227 of the Constitution of India. The jurisdiction under Article 226 of the Constitution of India for issuance of a writ of certiorari was not invoked by the learned Single Judge. It is simply a case where powers under Article 227 of the Constitution of India were exercised by the learned Single Judge and the writ petition was dismissed. No record of Board of Revenue was certified by the learned Single Judge for a writ of certiorari. Apart from this, the Board of Revenue and the learned Single Judge have concurrently recorded a finding that no notice was issued to the persons who were effected by the order of the Collector. The entries were in the name of the respondent No.1 but she was not noticed by the Collector, Chhatarpur before passing any order. The principles of natural justice were violated by the Collector, Chhatarpur by passing order dated 19.10.2001. The aforesaid order passed by the leaned Single Judge appears to be just and proper and no interference is needed.
(10) Now the question arises whether the Board of Revenue or the learned Single Judge ought to have remanded the matter to the Collector for issuance of notice and deciding the matter afresh. In this regard, there are only two provisions in the M.P. Land Revenue Code, 1959 for exercising such power, one under Section 50 which provides exercise of suo motu revision power by the Collector and another is section 115 which provides correction of wrong entry in Khasra and any other land records by superior officers. So far as Section 50 of the M.P. Land Revenue Code, 1959 is concerned, the law is well settled by the Apex Court in Patel Raghav (supra) in which the Apex Court considering the question held that power of suo motu revision must be exercised within a few months and the concerned authority must give reason for the exercise of such powers. For ready reference, paras 11 and 12 of the judgment may be referred which read as under:-
"11. The question arises whether the Commissioner can revise an order made under Section 65 at any time. It is true that there is no period of limitation prescribed under Section 211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised.
"12. It seems to us that Section 65 itself indicates the length of the reasonable time within which the Commissioner must act under Section 211. Under Section 65 of the Code, if the Collector does not inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted. This section shows that a period of three months is considered ample for the Collector to make up his mind and beyond that the legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Reading Sections 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations at least within a few months from the date of the permission. In this case the Commissioner set aside the order of the Collector on October 12, 1961, i.e., more than a year after the order, and it seems to us that this order was passed too late."
(11) In view of the settled position by the Apex Court, such powers could have been exercised within a few months and not after lapse of several years. Aforesaid view has been reiterated by the Full Bench of this Court in Ushadevi (supra) wherein the Full Bench of this Court held that the power of suo motu revision can be and has to be exercised within reasonable time. What should be the reasonable time for exercise of the power must be determined with regard to the facts and circumstances of the case and the nature of the order which is being revised. Aforesaid judgment has been passed by the Full Bench relying the judgment of Patel Raghv (supra). Similar view has been reiterated by the Division Bench of this Court in Harcharan Singh (supra)
(12) In view of aforesaid, it is settled by the Apex Court and this Court that such power could have been exercised within a reasonable time and not after long lapse of several years. Apart from this, before passing the order, the Collector ought to have issued a show cause notice to respondent No.1 and only after extending opportunity of hearing to respondent No.1, such order could have been passed. But as stated hereinabove, no show cause notice or opportunity of hearing was extended to the respondent No.1 by the Collector.
(13) Now question arises whether matter deserves to be remanded or not. At this stage, it will be sufficient to state that the State who in fact was the aggrieved party by the impugned order has not preferred any appeal against the said order. The appellant has no locus to file this appeal. The appellant was not a party to the proceedings before the revenue authorities, before the Board of Revenue or before the Single Bench. The decision in the matter does not affect any right of the appellant. Merely after deletion of entry, the appellant may get a benefit in respect of allotment of the retail outlet will not be a ground to permit the appellant to file this appeal. (See Devi Prasad-supra para 10). In view of aforesaid, the appellant is having no locus to file this appeal and on the basis of aforesaid, aforesaid contention of the appellant that the matter ought to have been remanded to the Collector has no substance. Even otherwise, the Collector can not exercise such power under Section 50 of the M.P. Land Revenue Code after long lapse of several decades. In this case, the entries were effected much before coming into force of the M.P. Land Revenue Code on 1.10.1959. Thereafter, first sale-deed was executed by Rambharose on 3.6.1985 to Govinddas and the name of Govinddas was recorded in the revenue record. Second sale-deed was executed on 24.3.1988 in favour of Jogendra and the name of Jogendra was recorded in the revenue record. In view of aforesaid, it is apparent that the entries, if any, were in the revenue record prior to 1985 and after a period of more than 16 years, such power could not have been exercised. It would be a futile exercise if the matter is remanded to the Collector.
(14) Another provision in the M.P. Land Revenue Code, 1959 is Section 115 which empowers the Tahsildar to correct the entries. Admittedly, the Tahsildar had not exercised the power for correction of the entries. Apart from this, in respect of limitation for correction in the revenue record to the Tahsildar, a period of one year is prescribed.
(15) In view of aforesaid factual position, we do not find any substance in the contention of the appellant that the Single Bench or the Board of Revenue ought to have remanded the matter to the Collector for fresh exercise.
(16) In the result, we do not find any merit in the appeal. This appeal is dismissed with no order as to costs.